                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         MAY 19 2003
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 MILTON LEE,

           Plaintiff - Appellant,
 vs.                                                    No. 03-3039
                                                (D.C. No. 02-CV-3411-GTV)
 KEITH HENRY, Judge, Junction City,                       (D. Kan.)
 Kansas; WAYNE LOSSMAN, Chief
 Jailer, Junction City, Kansas of Geary
 County Jail,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **


       Mr. Lee, appearing pro se and in forma pauperis, appeals from the district

court’s dismissal without prejudice of his civil rights action against Defendant

Wayne Lossman. He does not contest the dismissal with prejudice of Defendant

Judge Henry based upon absolute judicial immunity. Mr. Lee contends that his

       *
        This order and judgment is not binding precedent, except under the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.
suit for damages against the county jailer is not barred by Heck v. Humphrey, 512

U.S. 477, 486-87 (1994), as the district court so held.

      According to the complaint, Mr. Lee was sentenced to serve 30 days

consecutive to any county sentence. He alleges that there was no county sentence,

yet he was required to serve extra time from July 27, 2001 to August 15, 2001.

He faults the judge for illegally ordering a consecutive sentence and the jailer for

carrying it out. R. Doc. 1 at 3, 5. This action is premature under Heck because it

would imply the invalidity of the sentence pronounced by the state judge and

executed by the county jailer. 512 U.S. at 486-87. Thus, we affirm for

substantially the same reasons relied upon by the district court.

      AFFIRMED. Mr. Lee is reminded that he must make partial payments until

the entire balance of the appellate filing fee is paid.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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