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

                          FOR THE TENTH CIRCUIT                    May 16, 2019

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

    RAY ANTHONY MILES,

          Plaintiff - Appellant,
                                                    No. 19-3039
    v.                                      D.C. No. 5:18-CV-03168-SAC
                                                      (D. Kan.)
    STATE OF KANSAS,

          Defendant - Appellee.



                          ORDER AND JUDGMENT *


Before MATHESON, McKAY, and BACHARACH, Circuit Judges.


         Mr. Ray Miles sued the State of Kansas, challenging the

constitutionality of his incarceration and seeking $25 billion in damages.

Relying on Heck v. Humphrey, 512 U.S. 477 (1994), the district court




*
      Oral argument would not materially help us to decide this appeal. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). We have thus decided
the appeal based on Mr. Miles’s brief and the record on appeal.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
dismissed the action for failure to state a valid claim. 1 Mr. Miles appeals

the dismissal and seeks leave to proceed in forma pauperis.

      We conclude that Mr. Miles’s appeal is frivolous. In Heck v.

Humphrey, the U.S. Supreme Court held that damages for an allegedly

unconstitutional conviction or imprisonment are not available under 42

U.S.C. § 1983 unless the conviction or sentence has been

           reversed,

           expunged,

           declared invalid by an appropriate state court, or

           undermined by a federal court’s grant of habeas relief.

Heck, 512 U.S. at 486–87. Mr. Miles’s conviction and sentence have not

been reversed, expunged, declared invalid by an appropriate state court, or

undermined by a federal court’s grant of habeas relief. Heck thus bars Mr.

Miles’s damages action, rendering the appeal frivolous. See Davis v. Kan.

Dep’t of Corr., 507 F.3d 1246, 1249 (10th Cir. 2007) (concluding that an

appeal challenging the dismissal of a “§ 1983 claim [that] falls squarely

within the Heck holding” is a frivolous appeal); see also Neitzke v.



1
      The sole defendant is the State of Kansas, which enjoys Eleventh
Amendment immunity from suit in federal court. Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984). But if the parties do not
raise Eleventh Amendment immunity, the court need not raise the issue sua
sponte. United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th
Cir. 2008).


                                      2
Williams, 490 U.S. 319, 325 (1989) (observing that “an appeal on a matter

of law is frivolous where ‘[none] of the legal points [are] arguable on their

merits’” (quoting Anders v. California, 386 U.S. 738, 744 (1967))

(alternations in original)).

      Because the appeal is frivolous, we dismiss the appeal and deny Mr.

Miles’s motion for leave to proceed in forma pauperis. See Hunt v.

Downing, 112 F.3d 452, 453 (10th Cir. 1997) (denying an application to

proceed in forma pauperis and dismissing an appeal when the appeal is

frivolous); 28 U.S.C. § 1915(e)(2)(B)(i) (requiring dismissal of a frivolous

appeal). We also assess two strikes against Mr. Miles under 28 U.S.C.

§ 1915(g), one for the district court’s dismissal and one for our dismissal.

See Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780

(10th Cir. 1999) (“If we dismiss as frivolous the appeal of an action the

district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals

count as strikes.”), overruled on other grounds by Coleman v. Tollefson,

___ U.S. ___, 135 S. Ct. 1759 (2015).

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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