United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff alleges that he was
wrongfully incarcerated because of errors committed in his
underlying criminal proceedings. Plaintiff names the State of
Kansas as the sole defendant, and seeks twenty-five billion
dollars in monetary damages. On October 10, 2018, the Court
entered a Memorandum and Order and Order to Show Cause (Doc.
4) (“MOSC”), granting Plaintiff until November 2,
2018, to show good cause why his Complaint should not be
dismissed. This matter is before the Court on Plaintiff's
response (Doc. 7) to the MOSC.
Court's MOSC ordered Plaintiff to show cause why his
Complaint should not be dismissed as barred by Heck.
Plaintiff is only seeking monetary damages in this action. In
Heck v. Humphrey, the United States Supreme Court
held that when a state prisoner seeks damages in a §
1983 action, the district court must consider the following:
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.
Heck v. Humphrey, 512 U.S. 477, 487 (1994). In
Heck, the Supreme Court held that a § 1983
damages claim that necessarily implicates the validity of the
plaintiff's conviction or sentence is not cognizable
unless and until the conviction or sentence is overturned,
either on appeal, in a collateral proceeding, or by executive
order. Id. at 486-87.
has not shown good cause why his Complaint should not be
dismissed. Plaintiff has failed to show that his conviction
and sentence were invalidated. Plaintiff's response to the
MOSC does not allege that his conviction and sentence were
invalidated, nor does he address the Heck bar.
Instead, Plaintiff continues to make arguments regarding
errors in his state criminal proceedings. “[T]he
dismissal of a civil rights suit for damages based on
prematurity under Heck is for failure to state a
claim.” Lomax v. Ortiz-Marquez, 2018 WL
5870555, at *2 (10th Cir. Nov. 8, 2018) (unpublished)
(quoting Smith v. Veterans Admin., 636 F.3d 1306,
1312 (10th Cir. 2011)); see also Dunn v. Harper
Cty., 520 Fed.Appx. 723, 726 (10th Cir. April 5, 2013)
(unpublished) (claim barred by Heck is frivolous and
counts as a strike under § 1915(g) and court's
reliance on additional grounds for dismissal beyond
Heck does not prevent dismissal under Heck
from counting as a strike) (citing Davis v. Kan.
Dep't of Corr., 507 F.3d 1246, 1249 (10th Cir. 2007)
and Smith, 636 F.3d at 1312).
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's Complaint is dismissed as premature under
Heck for failure to state a claim.
IS SO ORDERED
 Plaintiff names the State of Kansas as
the sole defendant. The State of Kansas and its agencies are
absolutely immune from suits for money damages under the
Eleventh Amendment. The Eleventh Amendment presents a
jurisdictional bar to suits against a state and “arms
of the state” unless the state waives its immunity.
Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir.
2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2 v.
Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir.
2009)). Therefore, in the absence of some consent, a suit in
which an agent or department of the state is named as a
defendant is “proscribed by the Eleventh
Amendment.” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984).
 Online records for the Kansas Court of
Appeals show that the appeal of Plaintiff's state court
No. 16CV500 was dismissed on August 8, 2017. See Miles v.
State, No. 117543 (Kan.Ct.App.). Plaintiff's state
criminal No. 12CR1049 was affirmed by the Kansas Court of
Appeals on December 19, 2014, and Plaintiff's petition
for review was denied on April 21, 2016. See State v.
Miles, No. 110511 (Kan.Ct.App.). Plaintiff's state
criminal No. 10CR1665 was affirmed by the Kansas Court of
Appeals on December 2, ...