                                                                        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        This order and judgment is not binding precedent, except under the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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