                                                                                 FILED
                                                                     United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          April 27, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
CARLOS L. DIAZ, pro se, in his personal
capacity and in and for the estate of
Edmundo B. Diaz as brother and personal
representative of the estate,

      Plaintiff - Appellant,

v.                                                           No. 16-2227
                                                 (D.C. No. 1:14-CV-01086-KG-SCY)
GARY KING, New Mexico Attorney                                (D.N.M.)
General; HONORABLE JAMES
LAWRENCE SANCHEZ; HONORABLE
ALLEN SMITH; HONORABLE VIOLET
OTERO; CHARLES SANCHEZ, Hearing
Officer; HONORABLE WILLIAM
SANCHEZ, all acting in a capacity as
officers of the court in and for the
Thirteenth Judicial District Court, Valencia
County, all acting under color of law and
performing duties as officers of the court,
in their judicial capacity, official capacity,
personal capacity; ELIAS BARELA,
Attorney; LAW OFFICE OF BARELA,

       Defendants - Appellees,

and

JEFF SESSIONS*, United States Attorney
General; HONORABLE JAMIE BACA,
Probate Judge,

       Defendants.


       *
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this
action
.
                        _________________________________

                            ORDER AND JUDGMENT**
                        _________________________________

Before KELLY, MATHESON, and McHUGH, Circuit Judges.
                  _________________________________

      Carlos L. Diaz got into a dispute with his late brother’s partner, Nancy Barela,

during the probate action following his brother’s death. Ms. Barela accused Mr. Diaz

of fathering her son, and sued him in New Mexico state court for a paternity test and

child support. Dissatisfied with both the probate and paternity proceedings, Mr. Diaz

filed this lawsuit against several judges involved in the actions, as well as a hearing

officer, Ms. Barela’s attorney, and others. The district court ultimately dismissed

Mr. Diaz’s claims against all defendants.

      Liberally construing Mr. Diaz’s pro se opening brief, see Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), it appears he makes

three arguments. First, he argues the district court erred by dismissing his claims

against two state judges, James Sanchez and Allen Smith, and a hearing officer,

Charles Sanchez, on judicial immunity grounds. Second, he argues the district court

erred by quashing service on Ms. Barela’s attorney, Elias Barela, and his law office,

      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. 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.

                                            2
and by subsequently dismissing Mr. Diaz’s claims against them. And third, he argues

the district court erred by denying his motion to recuse. We reject these arguments

and affirm.

                                  I. Judicial Immunity

       According to the amended complaint, James Sanchez and Allen Smith are New

Mexico district court judges who presided over various aspects of the paternity suit.

Charles Sanchez is a New Mexico hearing officer who conducted a hearing and

recommended a paternity test. Mr. Diaz sued them for damages and injunctive relief

under 42 U.S.C. § 1983 and New Mexico law claiming, among other things, that they

violated his constitutional rights. The district court found they were entitled to

judicial immunity, so it granted their motion to dismiss under Fed. R. Civ. P.

12(b)(6).

       We review the district court’s ruling de novo. See Wasatch Equality v. Alta

Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016). We assume the facts alleged in the

complaint are true and make all reasonable inferences in Mr. Diaz’s favor. See id.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

       As the district court explained, a judge is immune from damage suits unless

(1) he did not act in his judicial capacity or (2) he acted “in the complete absence of

all jurisdiction.” Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1195

(10th Cir. 2008) (internal quotation marks omitted). And “unless a declaratory

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decree was violated or declaratory relief was unavailable,” § 1983 does not allow

injunctive relief against a judge acting in his judicial capacity. 42 U.S.C. § 1983.

This immunity extends to “others who perform functions closely associated with the

judicial process.” Dahl v. Charles F. Dahl, M.D., P.C. Defined Benefit Pension Tr.,

744 F.3d 623, 630 (10th Cir. 2014) (internal quotation marks omitted). New Mexico

law offers similar protection. See Edwards v. Wiley, 374 P.2d 284, 285 (N.M. 1962)

(“[J]udicial officers are not liable for the erroneous exercise of the judicial powers

vested in them, . . . [unless] they act wholly in excess of their jurisdiction.”);

Hunnicutt v. Sewell, 219 P.3d 529, 532 (N.M. Ct. App. 2009) (“[J]udicial immunity

has been extended to various persons whose adjudicatory functions or other

involvement with the judicial process have been thought to warrant protection . . . .”

(internal quotation marks omitted)).

       We agree with the district court that James Sanchez and Allen Smith are

entitled to judicial immunity. The amended complaint acknowledges they acted in

their judicial capacities, see R. Vol. 1 at 73, and includes no facts suggesting “a

complete absence of all jurisdiction,” Stein, 520 F.3d at 1195 (internal quotation

marks omitted). Moreover, none of Mr. Diaz’s claims relate to declaratory relief.

See § 1983.

       This immunity extends to Charles Sanchez, who performed well-established

judicial functions like holding hearings and making recommendations, see Butz v.

Economou, 438 U.S. 478, 513-14 (1978). Mr. Diaz admits Charles Sanchez acted in



                                             4
his capacity as a hearing officer, see R. Vol. 1 at 73, and does not dispute the district

court’s finding that he did not exceed his jurisdiction.

      Mr. Diaz’s only argument on this issue is the conclusory assertion that the

district court erred, and he cites no legal authority supporting his position. This is

not enough to prevail on appeal. See Champagne Metals v. Ken-Mac Metals, Inc.,

458 F.3d 1073, 1092 (10th Cir. 2006). We agree with the district court that these

defendants are entitled to judicial immunity and affirm its order of dismissal.

                                 II. Service of Process

      Mr. Diaz next challenges the district court order quashing service on

Mr. Barela and his law office, as well as its subsequent order dismissing his claims

against them without prejudice. Mr. Diaz accused Mr. Barela of conspiring with

other defendants to violate his constitutional rights, but he had trouble serving

Mr. Barela. It appears Mr. Diaz mailed a copy of the summons and amended

complaint to Mr. Barela’s law office by certified mail, but the envelope was returned

marked “refused unable to forward.” R. Vol. 1 at 223. A process server then went to

the building where the office was located and served a woman who worked there, but

the woman did not work for Mr. Barela and was not authorized to accept service on

his behalf. The district court found these efforts did not satisfy the requirements for

serving an individual or business under Fed. R. Civ. P. 4(e) and (h). It therefore

quashed service and gave Mr. Diaz 30 days to re-serve Mr. Barela and his law office.

When Mr. Diaz made no effort to do so, the district court dismissed his claims for

untimely service under Fed. R. Civ. P. 4(m).

                                            5
      We review de novo whether Mr. Diaz’s efforts to serve Mr. Barela and his law

office satisfied the requirements of Fed. R. Civ. P. 4(e) and (h). See Espinoza v.

United States, 52 F.3d 838, 840 (10th Cir. 1995). But we review the dismissal of

Mr. Diaz’s claims for abuse of discretion. See id.

      Mr. Diaz did not deliver copies of the summons and complaint to Mr. Barela,

leave copies at his dwelling, deliver copies to an authorized agent, or properly serve

Mr. Barela under New Mexico law. And Mr. Diaz does not argue he complied with

New Mexico law for serving a business or that he delivered copies of the summons

and complaint to an authorized agent of Mr. Barela’s law office. So we agree with

the district court that Mr. Diaz failed to satisfy the requirements for serving an

individual or business. See Fed. R. Civ. P. 4(e), (h)(1).

      Likewise, we see no error in the district court’s subsequent order dismissing

Mr. Diaz’s claims against these defendants. If a defendant is not timely served, the

district court “must dismiss the action without prejudice against that defendant or

order that service be made within a specified time. But if the plaintiff shows good

cause for the failure, the court must extend the time for service for an appropriate

period.” Fed. R. Civ. P. 4(m). Mr. Diaz did not timely serve Mr. Barela or his law

office,† and did not attempt to re-serve them after the district court gave him more


      †
         Fed. R. Civ. P. 4(m) now requires service within 90 days after a complaint is
filed, but prior to December 1, 2015, the time limit was 120 days. Mr. Diaz filed his
amended complaint on December 29, 2014. The district court quashed service on
August 4, 2015, and dismissed Mr. Diaz’s claims against Mr. Barela and his law
office on January 21, 2016—more than a year after the complaint was filed and more
than 120 days after advising Mr. Diaz why his initial attempts at service failed.
                                            6
time and thoroughly explained why his initial efforts were unsuccessful. Mr. Diaz

does not argue he established good cause for failing to serve these defendants within

the time limit. Under the circumstances, the district court’s decision to dismiss

Mr. Diaz’s claims was entirely reasonable. See Front Range Equine Rescue v.

Vilsack, 844 F.3d 1230, 1233 (10th Cir. 2017) (A district court abuses its discretion

when it “enters an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” (internal quotation marks omitted)).

                                III. Motion to Recuse

      Lastly, Mr. Diaz challenges the district court’s order denying his motion to

recuse. According to his motion, the district court judge had a duty to recuse because

his prior position as the United States Attorney for the District of New Mexico

somehow rendered him biased in favor of the New Mexico Attorney General, who

was a named defendant. The district court rejected this argument, finding that no

reasonable person who understood the circumstances would doubt the judge’s

impartiality.

      We review the denial of a motion to recuse for an abuse of discretion. United

States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006). A judge must “disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.”

28 U.S.C. § 455(a). This is true when “a reasonable person, were he to know all the

circumstances, would harbor doubts about the judge’s impartiality.” Mendoza,

468 F.3d at 1262 (internal quotation marks omitted). It takes more than speculation

or suspicion of bias to require recusal. See United States v. Cooley, 1 F.3d 985, 993

                                           7
(10th Cir. 1993). And prior adverse rulings or the judge’s familiarity with a

defendant are not enough. See id. at 994.

      Mr. Diaz cites no facts supporting his argument, and he does not explain why

the judge’s prior position as a United States Attorney would cause a reasonable

person to doubt his impartiality in a case involving the New Mexico Attorney

General. To the extent Mr. Diaz’s accusations are based on the judge’s rulings

against him, this is not enough to warrant recusal. Under the circumstances, the

district court did not abuse its discretion by denying Mr. Diaz’s motion.

                                   IV. Conclusion

      We affirm.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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