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

                             FOR THE TENTH CIRCUIT                            July 16, 2021
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 ISMAEL RUIZ,

       Plaintiff - Appellant,

 v.                                                         No. 21-8014
                                                   (D.C. No. 0:21-CV-00001-NDF)
 RICHARD L. LAVERY; D. RICHARD                                (D. Wyo.)
 HELSON,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

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

      Ismael Ruiz, a Wyoming prisoner proceeding pro se, 1 challenges the 28 U.S.C.

§ 1915A dismissal of his Pro-Se Amended Response to Complaint (Amended

Complaint). We affirm.




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      1
        Because Ruiz appears pro se, we liberally construe his filings, but we won’t
go so far as to act as his advocate. See United States v. Pinson, 

, 975
(10th Cir. 2009).
                                     BACKGROUND

       In 2018, Ruiz pleaded guilty under Wyoming law to one count of aggravated

assault and battery, Wyo. Stat. Ann. § 6-2-502(a)(1). 2 In accordance with the Plea

Agreement’s stipulation, the state court suspended a seven-to-ten-year prison sentence

and imposed five years’ probation. The next year, the state court revoked probation and

sentenced Ruiz to the previously agreed prison term.

       In 2021, Ruiz filed a “Prisoner Civil Rights Complaint Under 42 U.S.C. § 1983”

using a federal-district-court form and attaching state-court materials. R. at 3–44. He

named as defendants Richard L. Lavery, the judge who revoked probation, and D.

Richard Helson, his state public defender. As we understand it, Ruiz alleges

constitutional violations based on the revocation proceeding. Before filing, Ruiz neither

paid a filing fee nor filed an in forma pauperis (IFP) motion. Screening under 28 U.S.C.

§ 1915A, the federal district court dismissed the complaint without prejudice for failing

to state a claim for relief and ordered that if Ruiz filed an amended complaint, he must

also either pay a filing fee or file an IFP motion.

       Thereafter, Ruiz missed the deadline for amending the deficiencies identified, and

the court dismissed the case without prejudice. Soon afterward, the court received Ruiz’s




       2
        We derive the factual background from the Amended Complaint and the
materials Ruiz attached to it. Cf. Mayfield v. Bethards, 

, 1255 (10th
Cir. 2016) (“In reviewing a motion to dismiss, we accept the facts alleged in the
complaint as true and view them in the light most favorable to the plaintiff.”).
                                              2
Amended Complaint and an IFP motion. Reading the Amended Complaint liberally, the

court construed it to be an amended complaint and a “motion showing excusable neglect

for the tardiness of the amended complaint and motion for IFP” and reviewed both

untimely filings. Order Dismissing Amended Complaint Without Prejudice at 1–2, Ruiz

v. Lavery, No. 21-0001 (D. Wyo. Mar. 23, 2021), ECF No. 11 (Order).

       The Amended Complaint continues to name Judge Lavery and Helson as the

defendants. And as we understand the filing, Ruiz is alleging that the two defendants

violated Ruiz’s constitutional rights during the original pre-revocation criminal

proceedings. The Amended Complaint also alleges that Judge Lavery and Helson

violated Ruiz’s constitutional rights by not “inquir[ing]” into a self-defense theory and by

discriminating against him on an unidentified basis. Supp. R. at 7, 10, 14–15. Ruiz further

alleges that Helson violated Ruiz’s constitutional rights by failing to adequately conduct

discovery. The Amended Complaint apparently also seeks “a dismissal of the charge of

aggravated assault/Battery.” 

.

       The district court granted the IFP motion and then, under § 1915A, dismissed the

case with prejudice for failure to state a claim for relief. The court ruled that judicial

immunity protects Judge Lavery and that Ruiz failed to allege sufficient facts to meet the

under-color-of-law prerequisite for his § 1983 claim against Helson. Additionally, the

district court ruled that “[t]o the extent Ruiz asserts the conviction or his sentence violates

his constitutional rights,” a timely 28 U.S.C. § 2254 habeas petition is required. Order at

3. Last, the district court instructed that for Ruiz to obtain monetary damages for an


                                               3
allegedly unlawful conviction, he would need to show that the conviction had been

overturned. We review under 28 U.S.C. § 1291.



                                      DISCUSSION

       Under § 1915A(b)(1), a district court must dismiss a prisoner’s complaint that “is

frivolous, malicious, or fails to state a claim upon which relief may be granted.” We

review de novo § 1915A dismissals for failure to state a claim and on judicial immunity

grounds. Loggins v. Pilshaw, 838 F. App’x 323, 326–27 (10th Cir. 2020) (unpublished)

(citing Young v. Davis, 

, 1256 (10th Cir. 2009) (§ 1915A dismissal for

failure to state a claim); and also citing Crowe & Dunlevy, P.C. v. Stidham, 

, 1153 (10th Cir. 2011) (judicial immunity)).

       We agree with the district court on all points. First, Judge Lavery has absolute

judicial immunity from § 1983 liability. Hunt v. Bennett, 

, 1266 (10th Cir.

1994) (citation omitted). Ruiz hasn’t alleged that Judge Lavery acted “in the clear

absence of jurisdiction” such that judicial immunity doesn’t protect him. 

 (citation

omitted). Second, Ruiz fails in his § 1983 claim against Helson because public defenders

don’t act under color of state law. Polk Cnty. v. Dodson, 

, 324–25 (1981).

Third, Ruiz can’t challenge his conviction under § 1983. As the district court explained,

to do that Ruiz must file a habeas application under 28 U.S.C. § 2254. Finally, to obtain

civil damages based on his conviction, Ruiz must show that the conviction was




                                             4
overturned. Heck v. Humphrey, 

, 486–87 (1994). He’s not alleged this. Thus,

we affirm. 3


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




       3
        On appeal, Ruiz also filed a Motion for Summary Judgment, Declaration for
Entry of Default Judgment, and an IFP motion. Though we deny the Motion for
Summary Judgment and Declaration for Entry of Default Judgment as moot, we grant
Ruiz’s IFP motion. Still, we assess Ruiz a “strike” under 28 U.S.C. § 1915(g)
because we dismiss for failure to state a claim for relief. See 28 U.S.C. § 1915(g)
(prohibiting additional civil actions after three “action[s] or appeal[s]” are dismissed
for being “frivolous, malicious, or fail[ing] to state a claim upon which relief may be
granted”).
                                           5