                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    July 21, 2011
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 LANDREE WAUFORD,

              Plaintiff - Appellant,
                                                         No. 11-2034
 v.                                         (D.C. No. 1:10-CV-01158-LFG-GBW)
                                                      (D. New Mexico)
 BILL RICHARDSON, Governor of the
 State of New Mexico; KEN ORTIZ,
 Director of Motor Vehicle Division;
 MICHAEL SANDOVAL, Director of
 Motor Vehicle Division,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.



      After examining the appellate briefs and record, this court has concluded

unanimously that oral argument would not materially assist 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        This order and judgment is not binding precedent except under the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.
      Proceeding pro se, Landree Wauford appeals the district court’s dismissal

of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. In the

complaint, Wauford asserted due process claims arising from the suspension of

his New Mexico driver’s license. In 2008, Wauford was driving a vehicle in Ohio

when an officer cited him for following too close. Both New Mexico and Ohio

are signatories to the Nonresident Violator Compact, which provides that a

member state will suspend the driver’s license of a resident if he fails to respond

to a traffic citation issued by another member state. The clerk of the Ohio

municipal court notified Wauford that if he failed to respond to the citation or pay

the accompanying fine, notice would be given to the New Mexico licensing

authority. Although Wauford now alleges improprieties surrounding the issuance

of the citation, he did not challenge the citation in Ohio or pay the fine. As a

result, New Mexico suspended his driver’s license and Wauford brought this

§ 1983 suit, asserting violations of his First Amendment right to petition the

government and his Fourteenth Amendment right to procedural due process. The

claims were asserted against Defendants in both their individual and official

capacities.

      After the parties consented to proceed before a magistrate judge,

Defendants moved to dismiss Wauford’s complaint. The magistrate judge

considered both parties’ arguments and concluded (1) Wauford’s claims for

money damages against Defendants in their official capacities were barred by the

                                          -2-
Eleventh Amendment, (2) the complaint failed to state a claim against Defendants

because Wauford’s allegations were conclusory and did not meet the pleading

requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007)

(holding dismissal of a complaint is appropriate if plaintiff fails to plead “enough

facts to state a claim to relief that is plausible on its face”), and (3) Wauford

lacked standing to pursue his procedural due process claims because the grounds

on which he sought to challenge the suspension of his license were not available

to him in New Mexico, see Denny v. Richardson, 234 F. App’x 862, 866 (10th

Cir. 2007) (unpublished disposition) (concluding a motorist whose license is

suspended under the Nonresident Violator Compact has no “right to litigate the

issue of guilt as to the underlying traffic offense charged in the other state”).

      We have reviewed the record, the parties’s briefs, and the applicable law.

Wauford’s First Amendment claims for money damages against defendants in

their official capacities are clearly barred by the Eleventh Amendment and those

claims should have been dismissed without prejudice. See Korgich v. Regents of

N.M. Sch. of Mines, 582 F.2d 549, 550 (10th Cir. 1978). The magistrate judge

correctly concluded Wauford failed to sufficiently plead his remaining First

Amendment claims. See Twombly, 550 U.S. at 564. Accordingly, those claims

were properly dismissed with prejudice. The magistrate judge also correctly

concluded Wauford lacks standing to assert his procedural due process claims.

See Rector v. City & County of Denver, 348 F.3d 935, 943-44 (10th Cir. 2003)

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(“Unless a person asserts some basis for contesting a governmental deprivation of

life, liberty, or property, he is not injured by defective procedures he has no

occasion to invoke.”). Those claims should have been dismissed without

prejudice for lack of subject matter jurisdiction. See Albert v. Smith’s Food &

Drug Ctrs., Inc., 356 F.3d 1242, 1249 (10th Cir. 2004) (“In cases where the

district court has determined that it lacks jurisdiction, dismissal of a claim must

be without prejudice.”).

       The dismissal of Wauford’s complaint is affirmed. The matter is

remanded with instructions to the district court to amend the judgment and

dismiss the following claims without prejudice: (1) Wauford’s procedural due

process claims and (2) his First Amendment claim for damages against defendants

in their official capacities. 1

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




       1
        Although these claims should be dismissed without prejudice, Wauford is
directly estopped from relitigating the jurisdictional rulings in federal court.
Korgich v. Regents of N.M. Sch. of Mines, 582 F.2d 549, 550 (10th Cir. 1978)
(holding dismissal without prejudice based on Eleventh Amendment was “death
knell of the litigation” in federal court); Atl. City Mun. Utils. Auth. v. Reg’l
Adm’r, 803 F.2d 96, 103 (3d Cir. 1986) (“[A] dismissal for lack of subject-matter
jurisdiction, while ‘not binding as to all matters which could have been raised,’ is,
however, conclusive as to matters actually adjudged.”).

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