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

                             FOR THE TENTH CIRCUIT                       November 22, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
KHALID MOHAMMAD,

      Plaintiff - Appellant,

v.                                                         No. 17-2132
                                                (D.C. No. 1:16-CV-00776-JCH-LF)
ALBUQUERQUE POLICE                                      (D. New Mexico)
DEPARTMENT,

      Defendant - Appellee,

and

OFFICER GIL VOVIGIO; OFFICER
DANIEL YURCISIN,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________


       This appeal presents an incongruity between the issue raised in the appellant’s

opening brief and the issue raised in the notice of appeal. Because those two


       *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
documents reference entirely separate issues, we have no basis for disturbing the

lower court’s judgment, which we affirm.

      Khalid Mohammad, proceeding pro se,1 filed this action against the

Albuquerque Police Department (the “APD”) for incidents relating to an arrest and

detention in Albuquerque, New Mexico. He sued the APD under 42 U.S.C. § 1983

and the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-12. On March 1, 2017,

the district court dismissed with prejudice all claims against the APD (the “March 1

Order”), but directed the Clerk of the Court to add APD Officers Gil Vovigio and

Daniel Yurcisin (the “APD Officers”) as defendants. The district court further

directed the Clerk of the Court to mail Mr. Mohammad an “Application to Proceed in

District Court Without Prepaying Fees or Costs (Long Form)” and ordered Mr.

Mohammad to return that application within twenty-one days.

      Three months later, the district court sua sponte issued an order to show cause,

noting that Mr. Mohammad had not taken any action in the case since before the

district court’s March 1 Order and warning that failure to comply with or respond to

its latest order within twenty days would result in the dismissal of his lawsuit without

prejudice, without further warning. After more than a month had passed, the district

court dismissed the case for lack of prosecution on July 12, 2017 (the “July 12

Order”).




      1
         Because Mr. Mohammad is pro se, “we liberally construe his filings, but we
will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                           2
       On Aug. 4, 2017, Mr. Mohammad filed a timely notice of appeal. In its

entirety, the notice of appeal stated:

       Notice is hereby given that Khalid Mohammad, plaintiff in the above named
       case, hereby appeal [sic] to the United States Court of Appeals for the Tenth
       Circuit, the order to dismiss the case without prejudice, entered on 07/12/2017.

Mr. Mohammad attached three documents to the notice of appeal: the July 12 Order,

the order to show cause, and, curiously, a three-year-old order imposing filing

restrictions on Mr. Mohammad that was entered by the same district court judge in

separate litigation also involving Mr. Mohammad. On September 28, 2017, Mr.

Mohammad filed his opening brief in this court. In his brief, Mr. Mohammad focuses

exclusively on the March 1 Order dismissing the APD, and he advances no arguments

regarding the July 12 Order that was the sole issue identified in his notice of appeal.

       The Federal Rules of Appellate Procedure require a notice of appeal to

“designate the judgment, order, or part thereof being appealed.” Fed. R. App. P.

3(c)(1)(B). “[T]hose designations circumscribe the scope of our appellate review.”

HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1199 n.8

(10th Cir. 2017). In this case, the notice of appeal was clearly limited to the district

court’s order to show cause and the July 12 Order dismissing Mr. Mohammad’s case

for lack of prosecution. That is the limit of our appellate review. In these

circumstances, we do not consider arguments that are directed to decisions of the

district court not designated in the notice of appeal. See Cunico v. Pueblo Sch. Dist.

No. 60, 917 F.2d 431, 444 (10th Cir. 1990).



                                            3
      As for lack of prosecution, “[i]ssues not raised in the opening brief are deemed

abandoned or waived.” Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266

(10th Cir. 2004) (citation omitted). Mr. Mohammad’s failure to make any argument

in his opening brief regarding the district court’s decision to dismiss his case for lack

of prosecution is reason enough to affirm that judgment. In any event, even if we

were to consider the merits of the district court’s dismissal of this case, we would

affirm on that basis as well.

      “The district court’s decision to dismiss an action for lack of prosecution will

not be overruled absent an abuse of discretion.” DeBardeleben v. Quinlan, 937 F.2d

502, 504 (10th Cir. 1991) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)); see

also Childs v. Ortiz, 259 F. App’x 139, 141 (10th Cir. 2007). The district court relied

on Fed. R. Civ. P. 4(m) to dismiss Mr. Mohammad’s claims. That rule states:

      If a defendant is not served within 90 days after the complaint is filed,
      the court—on motion or on its own after notice to the plaintiff—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). The district court did not abuse its discretion in issuing the

July 12 Order because Mr. Mohammad (1) failed to serve the APD Officers within

ninety days of their being added to the lawsuit and (2) did not show good cause for

that failure. At the time the order to show cause was issued, more than ninety days

had passed from the time the APD Officers had been added to the suit, and they still

had not been served with the complaint. Further, the order to show cause gave


                                            4
Mr. Mohammad notice that the ninety-day period had expired and granted him

twenty days to “serve the individually named officers with the original complaint, or

file a completed application to proceed without prepaying fees or costs, or show

cause in writing as to why his case should not be dismissed for failure to prosecute.”

Mr. Mohammad did not respond to the order to show cause within the allotted time

and thus failed to complete any of these options. Therefore, Federal Rule of Civil

Procedure 4(m) required the district court to dismiss the case for lack of prosecution,

and the court did not abuse its discretion in doing so.

      For the foregoing reasons, we affirm.2

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




      2
         Mr. Mohammad also seeks leave to proceed in forma pauperis. Because it
appears from Mr. Mohammad’s motion for leave that he cannot afford to pay the
filing fee, we grant this request.
                                           5
