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

                             FOR THE TENTH CIRCUIT                            May 1, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 ELIAS QUINTANA,

       Plaintiff - Appellant,

 v.                                                          No. 18-7029
                                                   (D.C. No. 6:17-CV-00367-RAW)
 JUDGE KYLE WATERS, and Muskogee                             (E.D. Okla.)
 District Attorney ORVIL LOGE,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.**
                   _________________________________

      Dr. Elias Quintana appeals the district court’s order dismissing his suit against

Judge Kyle Waters and Muskogee District Attorney Orvil Loge and denying his

motion to amend his complaint.1 We review de novo an order granting a motion to


      *
         This order and judgment is not binding precedent, except under the doctrines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.
       **
          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.
       1
         Although Dr. Quintana’s opening brief mentions that the district court also
denied his motion for reconsideration, he presents no argument on this issue.
Similarly, Dr. Quintana’s opening brief requests that we allow amendment of his
complaint, but he does not elaborate on this request, and his only argument on the
district court’s denial of his motion to amend comes at the end of his reply brief.
Failure to make an argument in the opening brief waives the issue on appeal, and
dismiss, accepting all well-pled factual allegations as true and viewing them in the

light most favorable to the non-moving party. Acosta v. Jani-King of Okla., Inc., 

, 1158 (10th Cir. 2018).

      Dr. Quintana was convicted on one count of misdemeanor assault and battery

in Oklahoma state court in 2015. His complaint in this case alleged that the

prosecutor and judge in the underlying Oklahoma case colluded to deprive him of his

constitutional rights by means of improper jury instructions. In its order granting the

defendants’ motion to dismiss, the district court noted that Dr. Quintana had already

filed and lost another civil lawsuit alleging unconstitutional and tortious behavior by

a number of people involved in the underlying Oklahoma case. See Quintana v.

Adair, 673 F. App’x 815 (10th Cir. 2016). The district court then concluded that

Dr. Quintana’s current case was barred by “res judicata, precedent, or both,” (R. at

276 (quoting Fogle v. Gonzales, 597 F. App’x 485, 488 (10th Cir. 2015))), as well as

the immunity that exists for judges and prosecutors.

      “We may affirm the district court’s ruling for any reason that finds support in

the record, even if it is different from the stated basis for the ruling below.” Wilson

v. Titan Indem. Co., 

, 974 n.3 (10th Cir. 2007). “Typically, judges,

prosecutors, and witnesses enjoy absolute immunity” from civil liability for actions

taken in those roles. Stein v. Disciplinary Bd. of Supreme Court of N.M., 520 F.3d


making the argument in the reply brief is insufficient to save the issue from waiver.
See Zia Shadows, L.L.C. v. City of Las Cruces, 

, 1239 n.3 (10th Cir.
2016). Therefore, we do not address the district court’s denial of the motions for
reconsideration and to amend the complaint.
                                            2
1183, 1190 (10th Cir. 2008). “Prosecutors are absolutely immune from civil liability

for damages for ‘acts undertaken by a prosecutor in preparing for the initiation of

judicial proceedings or for trial, and which occur in the course of his role as an

advocate for the State.’” 

(quoting Buckley v. Fitzsimmons, 

,

273 (1993)).

      Absolute judicial immunity has “only two exceptions”: “(1) when the act is

‘not taken in [the judge’s] judicial capacity,’ and (2) when the act, ‘though judicial in

nature, [is] taken in the complete absence of all jurisdiction.’” 

(quoting

Mireles v. Waco, 

, 9–10 (1991) (modifications in original)). “[A]n act

taken in excess of a court’s jurisdiction is not to be confused with an act taken in the

‘complete absence of all jurisdiction.’” 

Court has even observed

that “if a judge of a criminal court should convict a defendant of a nonexistent crime,

he would merely be acting in excess of his jurisdiction and would be immune.” 

v. Sparkman, 

, 357 n.7 (1978)).

      Dr. Quintana acknowledges that “the action[] of providing jury instructions is

judicial in nature.” (Appellant’s Opening Br. at 15.) Nevertheless, he contends that

“[t]he purposeful/intentional (Extrinsic Fraud) omission of an essential element to

support any crime (Mens Rea) cannot be considered harmless error when it results in

a VOID verdict.” (Id. at 12 (emphasis omitted).) Therefore, according to

Dr. Quintana, “[w]hile a judge performing judicial functions may enjoy immunity,

denial of Constitutional and Civil rights [is] absolutely not a judicial function and

conflicts with any definition of a judicial function.” (Id. (emphasis omitted).)

                                            3
      Dr. Quintana’s argument is precluded by both Tenth Circuit and Supreme

Court precedent. A prosecutor’s arguments regarding the jury instructions that

should be given in a case, and the judge’s ultimate ruling on those jury instructions,

are quintessential prosecutorial and judicial functions, respectively. Contrary to

Dr. Quintana’s contention, a judge may be acting within his judicial capacity when he

violates a defendant’s constitutional and civil rights. See 

(“There can be no question that the state supreme court’s allegedly unconstitutional

acts—the issuance of the show-cause order and the remand to the Disciplinary

Board—were taken in a judicial capacity.”). Additionally, even if Judge Waters

could be said to have created “new law” by allowing Dr. Quintana to be convicted

without proof of mens rea, (Appellant’s Opening Br. at 25), such action would

merely be in excess of his jurisdiction, not in the complete absence of all jurisdiction.

See 

n.7. Thus, both District Attorney Loge and Judge Waters

are entitled to absolute immunity from Dr. Quintana’s claims.

      Accordingly, the district court’s order dismissing Dr. Quintana’s complaint is

AFFIRMED.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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