                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 11, 2011
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 CHARLES RAMOS, JR.,

          Plaintiff-Appellant,

 v.                                                           No. 10-1497
                                                    (D.C. No. 1:10-CV-01660-ZLW)
 MS. JERI D. SHEPHERD; MR. JAMES F.                            (D. Colo.)
 HARTMANN; MR. A.M. DOMINGUEZ, JR.;
 and MR. LEON WIKOFF,

          Defendants-Appellees.




                                     ORDER *

Before LUCERO, SEYMOUR and GORSUCH, Circuit Judges.



      Petitioner Charles Ramos, Jr., a Colorado state prisoner appearing pro se,

appeals the district court’s dismissal without prejudice of his civil rights action.

Mr. Ramos also seeks leave to proceed in forma pauperis. We exercise

jurisdiction under 28 U.S.C. § 1291 and liberally construe Mr. Ramos’s filings.

See Haines v. Kerner, 404 U.S. 519, 520 (1972). We deny Mr. Ramos’s motion


      *
       This order is not binding precedent, except under the doctrines of law of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.
to proceed in forma pauperis, as he fails to present a non-frivolous argument on

appeal, and we dismiss the appeal.

      Mr. Ramos is a prisoner in the custody of the Colorado Department of

Corrections, and is currently incarcerated in Sterling, Colorado. He filed this

action under 42 U.S.C. § 1983 against the deputy public defender who represented

him, the deputy district attorneys who prosecuted him, and the Weld County

sheriff’s deputy who testified at his criminal proceedings, claiming their actions

violated his rights to due process and equal protection. He alleges the sheriff’s

deputy gave perjured testimony, and that the remaining defendants improperly

failed bring the perjured testimony to the court’s attention. He makes other

claims of ineffective assistance of counsel as well.

      The district court dismissed Mr. Ramos’s suit pursuant to Heck v.

Humphrey, 512 U.S. 477 (1994). It held that because Mr. Ramos has not yet

invalidated his conviction or sentence on appeal or by post-conviction proceeding,

his complaint was barred by Heck. Mr. Ramos has appealed the district court’s

order. He also seeks leave to proceed without prepayment of fees.

      In Heck, the Court held that a claim “to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid . . . is not

cognizable under § 1983” until the conviction or sentence has been “reversed on

direct appeal, expunged by executive order, declared invalid by a state tribunal

                                         -2-
authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87 (citation

omitted). As a result, the Court explained,

      when a state prisoner seeks damages in a § 1983 suit, the district
      court must consider whether a judgment in favor of the plaintiff
      would necessarily imply the invalidity of his conviction or sentence;
      if it would, the complaint must be dismissed unless the plaintiff can
      demonstrate that the conviction or sentence has already been
      invalidated.

Id. at 487.

      Mr. Ramos denies that this suit is an attack on the validity of his sentence.

He argues instead that his illegal sentence “is only a symptom of the injuries done

by the defendants” through the allegedly-perjured testimony, and that he seeks

relief for the constitutional injury, not for the sentence. Aplt. Br. at 3. But the

plaintiff in Heck did not seek release from custody; he instead sought “among

other things, compensatory and punitive monetary damages.” Heck, 512 U.S. at

479. Despite Mr. Ramos’s arguments to the contrary, his suit is precisely of the

kind barred by Heck. There is no evidence that his conviction has been reversed,

expunged, declared invalid, or called into question. Additionally, a judgment in

favor of Mr. Ramos in the case before us would certainly “imply the invalidity of

his conviction or sentence.” See id. at 487. As a result, the district court properly

dismissed Mr. Ramos’s suit.

      Mr. Ramos notes in his appeal that he is currently challenging his sentence


                                          -3-
in the Colorado court system. See Aplt. Br. at 3. Because this action is dismissed

without prejudice, Mr. Ramos may subsequently choose to refile his § 1983 claim

if he ultimately prevails in the Colorado courts or by seeking alternative methods

of relief. For now, however, Mr. Ramos may not pursue this § 1983 suit.

       To proceed in forma pauperis on appeal, Mr. Ramos “must show a financial

inability to pay the required filing fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991); see also

28 U.S.C. § 1915(a). Even construing Mr. Ramos’s arguments liberally, he has

failed to present a nonfrivolous argument on appeal. We therefore DENY his

request to proceed in forma pauperis 1 and DISMISS the appeal.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




       1
           Mr. Ramos is obligated to make immediate payment of the unpaid balance
due.

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