F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 2 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID A. WILLIAMS,
Plaintiff - Appellant,
No. 03-3170
vs. (D.C. No. 02-CV-3369-GTV)
(D. Kan.)
STATE OF KANSAS; CHARLES E.
SIMMONS, Warden, El Dorado
Correctional Facility; WILLIAM L.
CUMMINGS, Director, El Dorado
Correctional Facility,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
Mr. Williams, an inmate appearing pro se, appeals from the district court’s
order dismissing his civil rights complaint pursuant to 42 U.S.C. § 1983. Mr.
Williams sought damages against the State of Kansas and various prison officials
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
contending that the Kansas Supreme Court did not correctly apply the law. The
district court first dismissed the action without prejudice for procedural
noncompliance. Mr. Williams filed a notice of appeal. Thereafter, the district
court granted Mr. Williams’ motion to alter or amend the judgment upon finding
that Mr. Williams indeed had complied. R. Doc. 10 at 1-2. Accordingly, the
district court vacated its earlier order and judgment, dismissed Defendant
Simmons, and held that any damage claims against the Kansas Supreme Court
would be barred by absolute judicial immunity. R. Doc. 10 at 4; Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978). The district court dismissed the action
with prejudice.
Mr. Williams did not file another notice of appeal (or an amended notice of
appeal) from the district court’s order and judgment acting upon his motion to
alter or amend the judgment. See Fed. R. App. P. 4(a)(4)(B)(ii). However, in
these circumstances we construe Mr. Williams’ request for appointment of
counsel, R. Doc. 14, as the functional equivalent of an amended notice of appeal
because it provides some notice of his desire to appeal the district court’s order
on his motion to alter or amend judgment. See Smith v. Barry, 502 U.S. 244,
248-49 (1992).
Although Mr. Williams argues the merits of his case on appeal, this action
is barred for other reasons. The State of Kansas is not considered a “person” and
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is therefore not a proper § 1983 defendant. Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 70-71 (1989). Moreover, Mr. Williams fails to allege facts
establishing Simmons and Cummings personally caused a constitutional violation.
“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th
Cir. 1997); see also Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996)
(“[P]ersonal participation is an essential allegation in a § 1983 claim.”).
Additionally, to the extent that Mr. Williams is attempting to assert claims
for damages against the individual defendants in their individual capacities, this
action would be premature given Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), which requires that Mr. Williams first demonstrate that his conviction or
sentence has been reversed or otherwise declared invalid. To the extent the
complaint really lies against the justices of the Kansas Supreme Court (as
interpreted by the district court), it is barred by absolute judicial immunity.
AFFIRMED. Mr. Williams is reminded that he must continue to make
partial payments of the appellate filing fee until the entire balance is paid.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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