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

                               FOR THE TENTH CIRCUIT                          February 9, 2018
                           _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
BRANDE LEE SAMUELS,

      Plaintiff - Appellant,

v.                                                             No. 17-5098
                                                  (D.C. No. 4:17-CV-00397-CVE-FHM)
RYAN MCDONALD; ROBERT NIGH;                                    (N.D. Okla.)
STEVE KUNZWEILER; ISAAC
SHIELDS; STUART SOUTHERLAND,

      Defendants - Appellees.
                      _________________________________

                                ORDER AND JUDGMENT
                           _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________


          Brande Lee Samuels appeals the district court’s dismissal of his amended

complaint that alleged claims under 42 U.S.C. § 1983 against three Tulsa County public

defenders and two prosecutors with the Tulsa County District Attorney’s Office. The

court dismissed the amended complaint without prejudice under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. It granted Mr. Samuels leave to proceed in

forma pauperis (“ifp”) on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.
      Mr. Samuels brought his § 1983 action pro se while in custody at the Tulsa County

Jail and awaiting trial.1 The amended complaint alleged four claims:

      (1) denial of the right to a fair and impartial trial process;

      (2) ineffective assistance of counsel when appointed counsel failed to provide
      him with copies of discovery;

      (3) ineffective assistance of counsel when appointed counsel failed to file and
      argue proper motions and challenge the voluntariness of his confession; and

      (4) systematic abrogation of constitutional rights by the Tulsa County District
      Attorneys “by way of the Tulsa County District Court.”

Mr. Samuels sought compensatory, punitive, and injunctive relief.

      The district court dismissed because (1) the public defenders did not act under

color of state law, as § 1983 requires; and (2) the prosecutors were entitled to

absolute immunity. The court pointed out that, if Mr. Samuels is convicted in his

state criminal action, he may be able to make his constitutional arguments on direct

appeal, in state post-conviction proceedings, or through a federal habeas corpus

application.




      1
         According to the Tulsa County District Court public docket for State v.
Samuels, No. CF-2016-1849, Mr. Samuels’s trial is scheduled to begin on August 28,
2018, on charges of shooting with intent to kill, Okla. Stat. tit. 21, § 652, and felon in
possession of a firearm, Okla. Stat. tit. 21, § 1283. Fed. R. Evid. 201(b)(2); see
United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a court
may take judicial notice of docket information from another court); Estate of
McMorris v. C.I.R., 243 F.3d 1254, 1258 n.8 (10th Cir. 2001) (same); see also United
States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005) (stating “we can take judicial
notice of state court records”).

                                            2
      Mr. Samuels raises three issues on appeal.2 “We review de novo the district

court's decision to dismiss an ifp complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).

      First, he argues that his amended complaint alleged sufficient factual detail.

Aplt. Br. at 4-6.3 This argument fails because, as we discuss below, he does not show

that the facts he did allege overcome the reasons that the district court dismissed the

amended complaint.

      Second, Mr. Samuels contests the district court’s ruling that the defendant

public defenders were not state actors under § 1983. Aplt. Br. at 7-9. The court

relied primarily on Polk Cty. v. Dodson, 454 U.S. 312 (1981), in which the Supreme

Court said that “a public defender does not act under color of state law when

performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.” Id. at 325. Mr. Samuels cites to the Eighth Circuit’s decision in

Dodson v. Polk Cty., 628 F.2d 1104 (8th Cir. 1980), which held “that an attorney in a

county or state funded public defender's office acts under color of state law in

representing indigent defendants.” Id. at 1106. But the Supreme Court reversed this

holding in its Polk County decision.


      2
         Because Mr. Samuels is pro se, we liberally construe his filings but do not act
as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). As the
district court noted, pro se plaintiffs bear “the burden of alleging sufficient facts on
which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
       3
         Starting on the fourth page, every page of Mr. Samuels’s brief contains a
heading that says “Page 3.” Our citations to his brief refer to the actual pages as if
they had been numbered consecutively.
                                           3
       In Dodson, the Supreme Court did “not suggest that a public defender never

acts” under color of state law, such as “making hiring and firing decisions” or

perhaps “while performing certain administrative and possibly investigative

functions.” 454 U.S. at 324-25. And in Tower v. Glover, 467 U.S. 914 (1984), the

Court refined Polk County, recognizing that a public defender acts “under color of

state law” when conspiring with state officials to deprive a client of constitutional

rights. Id. at 920; see also Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir. 1994). But

nothing in Mr. Samuels’s amended complaint alleged that the public defender

defendants were acting outside their traditional functions as counsel or conspiring

with state officials. The remaining authority cited in Mr. Samuels’s brief does not

call the district court’s ruling into question.

       Third, Mr. Samuels contests dismissal of his claims against the prosecutor

defendants, pointing out that they are not entitled to immunity for administrative

functions. Aplt. Br. at 10. But, as the district court said, a state prosecutor is

absolutely immune to a suit for civil damages based on the prosecutor’s performance

of functions “intimately associated with the judicial phase of the criminal process.”

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).

       Prosecutorial immunity covers pretrial advocacy functions, including the

preliminary hearing, which is the focus of Mr. Samuels’s amended complaint against

the prosecutors. ROA Doc. 13 at 6. See Burns v. Reed, 500 U.S. 478 (1991);

Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Kalina v. Fletcher, 522 U.S. 118

(1997); Mink v. Suthers, 482 F.3d 1244, 1258-63 (10th Cir. 2007). Mr. Samuels’s

                                             4
amended complaint lacks allegations that the prosecutor defendants acted outside

their prosecutorial functions, and his brief’s extended discussion of various points

and authorities does not cure this deficiency. See Aplt. Br. at 10-16.4

      For the foregoing reasons, we affirm the district court’s judgment. We deny

Mr. Samuels’s motions to amend and to remand as moot. As previously noted, the

district court granted him leave to proceed ifp on appeal, and we remind him of his

obligation to continue making partial payments until the entire filing fee is paid.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




      4
         The amended complaint’s request for relief lists “Compensatory relief -
$25,000 punitive relief - $125,000 Injuctions [sic] – As this Honorable Court sees in
the interest of justice to correct constitutional violations.” ROA Doc. 13 at 5.
Although the prosecutors’ immunity bars the § 1983 claim for money damages, they
may be sued for injunctive relief. See Supreme Court of Virginia v. Consumers
Union of U.S., Inc., 446 U.S. 719, 736-737 (1980); Pulliam v. Allen, 466 U.S. 522
(1984); Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264, 267 (10th Cir.
1994). Absolute immunity does not extend to “their official actions.” Hafer v. Melo,
502 U.S. 21, 29 (1991). Mr. Samuels, however, makes no argument on appeal that
his amended complaint against the defendant prosecutors should survive as to its
request for injunctive relief. Indeed, the portion of his brief on prosecutorial
immunity emphasizes “damages against the individual defendants,” Aplt. Br. at 14,
not injunctive relief. We will not consider a ground to reverse that has not been
argued. See United States v. Fisher, 805 F.2d 982, 991 (10th Cir. 2015).
                                           5
