* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID A. WILLIAMS, Plaintiff - Appellant,

vs. STATE OF KANSAS; CHARLES E. SIMMONS, Warden, El Dorado Correctional Facility; WILLIAM L. CUMMINGS, Director, El Dorado Correctional Facility, Defendants - Appellees. No. 03-3170 (D.C. No. 02-CV-3369-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges. **
Mr. Williams, an inmate appearing pro se, appeals f rom 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- 2 -

contending that the Kansas Supreme Court did not co rrectly apply the law. The district court first dismissed the action without p rejudice for procedural noncompliance. Mr. Williams filed a notice of appe al. Thereafter, the district court granted Mr. Williams’ motion to alter or amen d 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 judgme nt, dismissed Defendant Simmons, and held that any damage claims against th e 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’ reque st for appointment of counsel, R. Doc. 14, as the functional equivalent o f an amended notice of appeal because it provides some notice of his desire to ap peal 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 i s not considered a “person” and- 3 -

is therefore not a proper § 1983 defendant. Will v . Michigan Dep’t of State Police , 491 U.S. 58, 70-71 (1989). Moreover, Mr. William s fails to allege facts establishing Simmons and Cummings personally causeda constitutional violation. “Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiege l , 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 allegati on in a § 1983 claim.”). Additionally, to the extent that Mr. Williams is attempting to assert claims for damages against the individual defendants in th eir individual capacities, this action would be premature given Heck v. Humphrey , 512 U.S. 477, 486-87 (1994), which requires that Mr. Williams first demo nstrate that his conviction or sentence has been reversed or otherwise declared in valid. To the extent the complaint really lies against the justices of the K ansas Supreme Court (as interpreted by the district court), it is barred by absolute judicial immunity. AFFIRMED. Mr. Williams is reminded that he must co ntinue 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