                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             January 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                               Clerk of Court
                                    TENTH CIRCUIT



TRIGINAL D. JACKSON,

               Plaintiff - Appellant,                 No. 09-2093
       v.                                           (D. New Mexico)
NEW MEXICO PUBLIC                           (D.C. No. CIV-09-00351-MCA-DJS)
DEFENDER’S OFFICE; PATTI
BRUMMETT; 3 UNKNOWN PUBLIC
DEFENDERS,

               Defendants - Appellees.
-------------------------------------
TRIGINAL D. JACKSON,

               Plaintiff - Appellant,                 No. 09-2158
       v.                                           (D. New Mexico)
DA BRANDENBURG; 3 UNKNOWN                   (D.C. No. CIV-09-00094-JAP-ACT)
ADA; DISTRICT ATTORNEY’S
OFFICE, ALBUQUERQUE, NEW
MEXICO,

               Defendants - Appellees.
-------------------------------------
TRIGINAL D. JACKSON,

               Plaintiff - Appellant,                 No. 09-2215
       v.                                           (D. New Mexico)
STATE OF NEW MEXICO; COUNTY                  (D.C. No. CIV-09-00698-BB-CG)
OF BERNALILLO; CITY OF
ALBUQUERQUE,

               Defendants - Appellees.
                             ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases

are therefore ordered submitted without oral argument.

      Following encounters with the justice system on charges relating to several

misdemeanors and a felony, Triginal Jackson filed separate § 1983 1 actions

against his public defenders, the prosecutors, the State of New Mexico, County of

Bernalillo, and City of Albuquerque, alleging violations of his constitutional


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
          Section 42 U.S.C. § 1983 provides, in relevant part, as follows:

      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State or Territory or the District of
      Columbia, subjects, or causes to be subjected, any citizen of the
      United States or other person within the jurisdiction thereof to the
      deprivation of any rights, privileges, or immunities secured by the
      Constitution and laws, shall be liable to the party injured in an action
      at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

                                           -2-
rights. 2 The district court dismissed the actions on grounds of frivolousness or

failure to state a claim upon which relief could be granted.

      Mr. Jackson, proceeding pro se, seeks leave to appeal those dismissals

without prepayment of filing fees (in forma pauperis), pursuant to 28 U.S.C.

§ 1915(a)(1). Apparently, he was not a prisoner at the time the appeals were

filed; thus, certain provisions of § 1915 do not apply.

      We consolidate these three appeals, Nos. 09-2093, 09-2158, and 09-2215,

for purposes of disposition and, after applying the liberal standards of review

accorded pro se litigants, we dismiss each of them for the reasons stated below.



                             Appeal No. 09-2093
                Jackson v. New Mexico Public Defender’s Office

      This is the second time that Mr. Jackson has been before us appealing the

dismissal of an action against the public defender, the public defender’s office,

and unnamed members of the staff. See Jackson v. Brummett, 311 Fed. Appx.


      2
        At various places in his pleadings, Mr. Jackson erroneously relies on the
Supreme Court’s opinion in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Section 1983 deals with claims
against persons who, acting under color of state law, allegedly violated a right
secured by the Constitution and laws of the United States. See West v. Atkins,
487 U.S. 42, 48 (1988); Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009).
That is the case here. In contrast, in Bivens, the Supreme Court “recognized for
the first time an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.” Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). Nothing in Mr. Jackson’s complaint
suggests involvement by federal officers; thus, Bivens is simply inapplicable.

                                         -3-
114 (10th Cir. Feb. 9, 2009) (unpublished). He acknowledges in the complaint he

filed in this case that his claims here are identical to the ones we previously

reviewed and rejected. Compl. at 4. The only difference is that instead of

naming two unknown public defenders, he adds a third unknown public defender.

      We have compared Mr. Jackson’s prior appeal with the case now before us

and have confirmed Mr. Jackson’s admission that the issues and claims in each

are substantially identical. The enlargement of unknown public defenders from

two to three is immaterial to the claims asserted.

      As we have emphasized, “final judgment on the merits of an action

precludes the parties or their privies from relitigating issues that were or could

have been raised in that action.” Pelt v. Utah, 539 F.3d 1271, 1281 (10th Cir.

2008) (further quotation omitted). Thus, the finality of Mr. Jackson’s first appeal

raises the bar of preclusion to Mr. Jackson’s current attempt to relitigate the same

claims or issues. See Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009).

      For that reason, as well as those stated in the district court’s Mem. Op. and

Order dated April 15, 2009, we deny Mr. Jackson’s motion to proceed ifp and

dismiss this appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




                                          -4-
                              Appeal No. 09-2158
                          Jackson v. D.A. Brandenburg

      In this action, Mr. Jackson alleges that the district attorney repeatedly

mishandled charges against him, including dismissals of those charges, leading to

false imprisonment and loss of “job, housing, company housing, company paid

meals, company vehicle, travel and pursuit of happiness.” R. Vol. 1 at 4.

Mr. Jackson characterizes that claim in his brief on appeal as “District Attorney

could be sued for prosecuting casing that they knew or should have known the

Defendant was innocent. District attorney could be sued for prosecuting

maliciously after Defendant has been in jailed for multiple case and they all have

been dismissed. Then it becomes obvious that Defendant is being framed. DA

seek conviction at any price.” Appellant’s Br. at 2 (spelling and grammar as they

appear in original).

      In further counts, the complaint alleges: (1) false imprisonment, false

charges, malicious prosecution, negligence, gross negligence and excessive

charges; (2) false light, libel, “defamatory,” and slander; (3) violations of due

process; (4) discrimination “Efacto policy,” legal egalitarianism, Amendment

XIV, section 1 clause 2 of the United States Constitution known as the privileges

and immunities clause (violation of the right to travel); and (5) “vicarious

liability, command responsibility, agency – respondent [sic] superior –




                                         -5-
Contributory negligence, Enterprise liability Title 42 U.S.C. 14141 (Pattern and

Practice).” R. Vol. 1 at 6-7.

      The district court dismissed the complaint as frivolous because prosecutors

are immune from suit for actions in their prosecutorial function, see Imbler v.

Pachtman, 424 U.S. 409, 431 (1976); and, as to the Office of the District

Attorney, for the reasons (1) that it may not be sued under a respondeat superior

theory, see Polk County v. Dodson, 454 U.S. 312, 325 (1981); (2) it is not a

person for § 1983 purposes; and, (3) as an arm of the state, it is protected from

suit by the Eleventh Amendment, see Will v. Michigan Dept. of State Police, 491

U.S. 58, 70-71 (1989). Order Dismissing Compl. at 3-4. The court also declined

to take supplemental jurisdiction over any state law claims, as it was entitled to

do after dismissing the federal claims. See Bauchman v. West High School, 132

F.3d 542, 549 (10th Cir. 1997). On appeal, Mr. Jackson argues generally that the

district court was wrong and that we should look more deeply into the matter.

      We review the district court’s decision to dismiss an in forma pauperis

complaint under 28 U.S.C. § 1915(e)(2)(i) for an abuse of discretion, but if the

frivolousness determination turns on an issue of law, we review the dismissal de

novo. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). Although we are

not bound to accept Mr. Jackson’s factual allegations as true, they must be

weighted in his favor. See Denton v. Hernandez, 504 U.S. 25, 32 (1992). A




                                         -6-
claim is frivolous under § 1915 if it “lacks an arguable basis either in law or in

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

      We agree with the district court’s analysis. “Prosecutors are entitled to

absolute immunity for their decisions to prosecute, their investigatory or

evidence-gathering actions, their evaluation of evidence, their determination of

whether probable cause exists, and their determination of what information to

show the court.” Nielander v. Board of County Com’rs., 582 F.3d 1155, 1164

(10th Cir. 2009) (citing Imbler, 424 U.S. 409, 425-28). Such decisions include

“whether and when to prosecute[] [and] whether to dismiss” a case. Imbler, 424

U.S. at 431 n.33 (emphasis added). The test is a functional one which focuses on

activities “intimately associated with the judicial phase of the criminal process

. . . .” Id. at 430. See Forrester v. White, 484 U.S. 219, 229 (1988). The focus,

therefore, is “not on the harm that the conduct may have caused or the question

whether it was lawful.” Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993). The

Court in Imbler put it as follows:

      [A] prosecutor inevitably makes many decisions that could engender
      colorable claims of constitutional deprivation. Defending these
      decisions, often years after they were made, could impose unique and
      intolerable burdens upon a prosecutor responsible annually for
      hundreds of indictments and trials.

Imbler, 424 U.S. at 425-26. And, as indicated above, the district court correctly

pointed out that the office of the district attorney could not be sued under a

respondeat superior theory; and it is protected from suit by the Eleventh


                                          -7-
Amendment. Immunity also extends to supervising attorneys. See Van de Kamp

v. Goldstein, 129 S. Ct. 855 (2009).

      On appeal, Mr. Jackson provides us with no basis to reverse. Therefore, for

substantially the same reasons stated by the district court in its Order Dismissing

Complaint, filed on May 11, 2009, we deny Mr. Jackson’s motion to proceed ifp

and dismiss this appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).



                              Appeal No. 09-2215
                       Jackson v. State of New Mexico,
                   County of Bernalillo, City of Albuquerque

      Mr. Jackson’s complaint against the State, County and City alleges a host

of grievances, mostly collectively, arising from two 3 arrests in Albuquerque by

Officer Keith Sandy: a misdemeanor arrest of Mr. Jackson, following a traffic

stop, for having an open container of an alcoholic beverage in his vehicle; and,

later the same month, a felony arrest for battery (no details are supplied). The

arrests led to detention, the imposition of bonds ($100 for the first infraction,

$500 for the second), further detention, and ultimate release following dismissal

of each case by the district attorney. R. Vol. 1 at 5-7.

      Specifically, the complaint alleges false arrest; false imprisonment;

malicious prosecution; harassment (no details furnished) in jail by an unnamed

      3
        Mr. Jackson’s various actions allege differing numbers of arrests. In the
instant case he identifies only two, Compl. at 5, although he asserts elsewhere
that he had been arrested three times. Id. at 6.

                                         -8-
Bernalillo employee; being beaten and threatened (no names or details furnished);

excessive bond amounts in violation of the Eighth Amendment resulting in

continued detention in jail; negligence; gross negligence; contributory negligence;

defamation (libel, slander, false light); “vicarious liability, Command

responsibility, agency – respondent [sic] superior; Contributory negligence,

Enterprise liability Title 42 U.S.C. Section 14141 (Pattern and Practice),” failure

to properly monitor and supervise officers and lack of proper training (no names

or details furnished); “Intentional infliction of emotional distress”; and

“Harassment/Abuse of Power.” Id. at 6-7.

      The district court, after Mr. Jackson was given an opportunity to clarify his

complaint, adopted the magistrate judge’s recommendation, and, in addition,

issued its own opinion dismissing the complaint under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted. Our review of the

district court’s dismissal for failure to state a claim is de novo. Ledbetter v. City

of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). A dismissal for failure to state

a claim is appropriate only when it is apparent that a plaintiff can prove no set of

facts which would entitle him to relief. Kay v. Bemis, 500 F.3d 1214, 1217 (10th

Cir. 2007). We construe Mr. Jackson’s complaint liberally, See Ledbetter, 318

F.3d at 1187. Applying those standards here, we affirm the district court for the

reasons stated below and for substantially the reasons set out in the district court

and magistrate-judge’s opinions.


                                          -9-
                            A. The State of New Mexico

      Mr. Jackson’s allegations against the State are too general and conclusory

to address. And, allegations against particular State officials are wholly lacking

except for references to the public defenders, the district attorney, and judges.

Those allegations are addressed separately in Mr. Jackson’s other actions, except

for judges, and they have absolute immunity for the acts alleged—all of which

were done in their judicial capacity. See Mireles v. Waco, 502 U.S. 9, 9-12

(1991); Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).

      In any event, the State cannot be sued under § 1983 for two separate

reasons. First, § 1983 “does not provide a federal forum for litigants who seek a

remedy against a State for alleged deprivations of civil liberties. The Eleventh

Amendment bars such suits unless the State has waived its immunity.” Will, 491

U.S. at 66. And, despite Mr. Jackson’s arguments to the contrary, the State of

New Mexico has not waived its immunity in civil rights suits such as this.

Second, § 1983 applies only to “persons” and, when sued solely for money

damages, as in this case, “neither a State nor its officials acting in their official

capacities are ‘persons’ under § 1983.” Will, 491 U.S. at 71; Hafer v. Melo, 502

U.S. 21, 26 (1991).

      Thus, for the foregoing reasons and those set out in the Magistrate Judge’s

Mem. Op., dated August 11, 2009, and the District Court’s Order Dismissing

Case, dated September 2, 2009, this suit against the State must be dismissed under


                                          -10-
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be

granted.



             B. The County of Bernalillo and City of Albuquerque

      Cities and counties are not immune from suit in federal court under § 1983.

See Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978); see

also Will, 491 U.S. at 65 n.7 (“[A] municipality is a person under § 1983. . . .”).

But, we agree with the district court that Mr. Jackson has failed to make any

allegations of wrongdoing with respect to any named or otherwise identified

person, with the exception of Albuquerque police officer Keith Sandy (who is not

a named party defendant), the district attorney, the public defender and the judge

who imposed a bond (also not a named party defendant), all of whom we have

discussed above. And, he has failed to identify any County or City policy,

custom or practice, or any policymaker, connected to an alleged violation of his

rights under the Federal Constitution. Thus, as to those entities, he has failed to

state a claim upon which relief can be granted.

      Nevertheless, we turn briefly to Mr. Jackson’s constitutional tort claims of

false arrest, malicious prosecution, false imprisonment, and related claims. In

this circuit, the state tort law of false arrest, false imprisonment, or malicious

prosecution provides a starting point for analyzing a corresponding claim under

§ 1983. See Erikson v. Pawnee County Bd. of County Com’rs, 263 F.3d 1151,


                                         -11-
1154 (10th Cir. 2001) (discussing malicious prosecution); Smith v. Plati, 258 F.3d

1167, 1174 (10th Cir. 2001) (discussing false arrest and false imprisonment).

      In New Mexico an essential element of each of those torts is a lack of

probable cause. See State v. Johnson, 930 P.2d 1148, 1153 (N.M.1996); Wolford

v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (lack of probable cause is an

essential element of malicious prosecution in New Mexico). See also Nielander,

582 F.3d at 1164 (“To establish a malicious prosecution claim under § 1983, a

plaintiff must prove that the defendant initiated or continued a proceeding against

him without probable cause.”). Mr. Jackson acknowledges this requirement.

Appellant’s Op. Br. at 6, ¶3.A.

      Mr. Jackson recites that Officer Sandy issued him a citation for having an

open container of an alcoholic beverage, then arrested him when he twice refused

to sign the citation, although he agreed at the point of arrest. Id. at 5, ¶2.

Significantly, Mr. Jackson does not deny that he indeed had an open container of

an alcoholic beverage in his vehicle or that the officer lawfully cited him for it.

      Although Mr. Jackson does not furnish any details regarding the location of

this incident, we note that it is unlawful in New Mexico to have an open can,

bottle or other receptacle containing an alcoholic beverage in one’s vehicle while

on the public highway. N.M. Stat. Ann. § 66-8-138 (B), (C). The offense is

classified as a Penalty Assessment Misdemeanor for the first offense, carrying a

penalty assessment of $25.00. Id. § 66-8-116.


                                          -12-
      As indicated, Mr. Jackson does not deny that he violated the open container

law. His argument is that he was not subject to arrest for refusing to sign the

citation because he agreed at the point of arrest to sign it. Thus, he contends, his

arrest was unlawful and led to a myriad of other woes (the setting of a bond,

incarceration and so forth).

      Likewise, Mr. Jackson alleges that Officer Sandy arrested him for battery,

an offense under N.M. Stat. Ann. § 30-3-4, but does not deny that the elements of

that statute (or the related statute concerning assault, N.M. Stat. Ann. § 30-3-

1—to which some reference appears in these pleadings) were met so as to provide

Officer Sandy probable cause to arrest.

      First of all, Mr. Jackson is wrong about Officer Sandy’s right to arrest him

along with issuing a citation for violating the open container law. New Mexico

law, N.M. Stat. Ann. § 31-1-6(A), appears to give the officer discretion to arrest.

      Regardless, the Supreme Court has said that “when an officer has probable

cause to believe a person committed even a minor crime in his presence, the

balancing of public and private interests is not in doubt. The arrest is

constitutionally reasonable.” Virginia v. Moore, 128 S. Ct. 1598, 1604 (2008);

Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable

cause to believe that an individual has committed even a very minor criminal

offense in his presence, he may, without violating the Fourth Amendment, arrest

the offender.”).


                                          -13-
      While there may exist a line somewhere beyond which something is so

minor that even the rule of the Moore and Atwater cases does not apply, we

decline to draw it in a situation where a driver is on the road with an open

container of alcohol available in his vehicle. The arrest for this admitted offense

was clearly supported by probable cause (a statutory offense in the officer’s

presence), and was, therefore, reasonable for Fourth Amendment purposes. The

same conclusion applies to the arrest of Mr. Jackson for battery. And, since the

arrests were supported by probable cause, the ensuing court proceedings did not

violate the Constitution.

      We have considered all of Mr. Jackson’s arguments. Most relate to his

lawful arrest and detention based on probable cause and fail as a result. His

Eighth Amendment claims are wholly conclusory and name no individuals. Thus,

they fail as well, along with other conclusory allegations. See Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007).

      For the reasons stated above and those stated in the Magistrate Judge and

District Court’s orders referred to above, we dismiss the complaint against the

County of Bernalillo and City of Albuquerque under § 1915(e)(2)(B)(ii) for

failure to state a claim upon which relief can be granted.




                                         -14-
                                CONCLUSION

      For the reasons stated above, Mr. Jackson is denied leave to appeal ifp in

each of these cases, No’s. 09-2093, 09-2158, and 09-2215, and each appeal is

DISMISSED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




                                       -15-
