Damian MACIAS, Plaintiff-Appellant, v. Alan J. GRIFFIN, Deputy District Attorney, and Fifth Judicial District Attorney's Office, Defendants-Appellees, 612 F. App'x 532

ORDER AND JUDGMENT TIMOTHY M. TYMKOVICH, Circuit Judge. Damian Macias, a state prisoner proceeding pro se and in foma pauperis, appeals the dismissal of his civil rights complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Macias sued a deputy district attorney and New Mexico’s Fifth Judicial District Attorney’s Office under 42 U.S.C. § 1983.

He alleged violations of his constitutional rights arising out of the state’s alleged failure to provide notice of its intention to seek an increased sentence based on the presence of aggravating circumstances. Because Macias was proceeding in forma pauperis, 28 U.S.C. § 1915 obligated the district court to review his complaint and enter a judgment of dismissal if the complaint failed to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e) (2) (B) (ii).

The court found dismissal was warranted because the district attorney was protected by prosecutorial immunity and the district attorney’s office was part of the state and thus not a “person” within the meaning of § 1983. We review dismissals under § 1915(e)(2)(B)(ii) for failure to state a claim de novo. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.2007). In doing so, we construe Macias’s pro se brief liberally, but “we do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir.2008) (quoting Ledbetter v.

City of Topeka, 318 F.3d 1183, 1187-88 (10th Cir.2003)) (internal quotation marks omitted). Macias’s brief reasserts the alleged constitutional violations and contends that a review of the record “will show that the court ruled improperly.” Aplt. Br. at 4. He makes no argument as to why the district attorney is not entitled to immunity or why the district attorney’s office is an entity subject to suit. Even proceeding pro se, Macias had an obligation to comply with Federal Rule of Appellate Procedure 28. See Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (“[T]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.”). We will not “fill the void” where an appellant does not comply “by crafting arguments and performing the necessary legal research.” Id. at 841. Accordingly, we find any challenge to either of the district court’s conclusions waived. See id. (“[T]he inadequacies of Plaintiffs briefs disentitle him to review by this court.”). Even were we to forgive the inadequacies in the briefing, however, we would affirm.

Prosecutors are immune from suit under § 1983 for their decisions to prosecute, and Macias’s complaint alleged no facts to suggest the district attorney was acting outside of his prosecutorial function. See Nielander v. Bd. of Cty. Comm’rs, 582 F.3d 1155, 1164 (10th Cir.2009) (citing Imbler v. Pachtman, 424 U.S. 409, 425-28, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Dismissal of the claims against the district attorney’s office was also appropriate because it is a state office that is both protected by thé Eleventh Amendment and not subject to suit under § 1983. See Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983”); Jackson v. N.M. Pub. Defi’s. Office, 361 Fed.Appx. 958, 962 (10th Cir.2010) (holding that New Mexico’s Second Judicial District Attorney’s Office “is protected from suit by the Eleventh Amendment”); Vacek v.

CouH of Appeals, Santa Fe, N.M., 325 Fed.Appx. 647, 649 (10th Cir.2009) (“[T]he New Mexico courts and agencies [including the Second Judicial District Attorney’s Office] listed as defendants ... are not entities against which ... § 1983 ... claims may be lodged given Eleventh Amendment immunity.”); Ysais v. Richardson, No. Civ. 07-0287 JB/RLP, 2008 WL 4861697, at *5 (D.N.M. July 9, 2008) (finding New Mexico’s Thirtieth Judicial District Attorney’s Office is a state entity). Accordingly, we affirm the dismissal.

The district court’s dismissal of the complaint constitutes one “strike” against Macias under the Prison Litigation Reform Act. Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir.2011) (“When an action or appeal is dismissed as frivolous, as malicious, or for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal counts as a strike.”) (citing Jennings v. Natrona Cty. Det. Ctr. Med. Fac., 175 F.3d 775, 777-78 (10th Cir.1999)). We caution Macias that at three strikes he will be subject to the filing restrictions found in § 1915(g).

Finally, we affirm the magistrate judge’s order granting leave to proceed in forma pauperis on appeal, but take this opportunity to remind Macias of his obligation to make partial payments until the filing fees are paid in full. 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. .

Section 1983 provides in relevant part: "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. .

The district court cited Federal Rule of Civil Procedure 12(b)(6) as an alternative source of authority to sua sponte dismiss Macias’s complaint. See R. at 27 (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) for the proposition that a court may sua sponte dismiss under Rule 12(b)(6) if "it is 'patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile”).

This does not affect our review on appeal because ”[w]e apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Kay, 500 F.3d at 1217.