66 F3d 338 Jenkins v. L Scott
66 F.3d 338
Anthony Ray JENKINS, Plaintiff-Appellant,
v.
Don L. SCOTT and State of Kansas, Defendants-Appellees.
No. 94-3426.
(D.C.No. 94-CV-3334)
United States Court of Appeals, Tenth Circuit.
Sept. 15, 1995.
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Before TACHA, LOGAN and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
This matter is before the court on plaintiff Anthony Ray Jenkins' motion for leave to proceed in forma pauperis on appeal without payment of costs or fees. To succeed on his motion, plaintiff must show both the financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C.1915(d); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir.1962).
The district court properly dismissed plaintiff's 42 U.S.C.1983 complaint, because neither the State of Kansas nor the Department of Corrections is a "person" for purposes of 1983, Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989), and defendant Don L. Scott, district attorney, is entitled to absolute immunity for his actions taken in his role as prosecutor. Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976). Although on appeal plaintiff refers to speedy trial rights, double jeopardy and probable cause, he did not and could not raise those issues below in a 1983 case; arguments attacking the fact of his state court conviction or confinement must be raised in a habeas action. See Preiser v. Rodriquez, 411 U.S. 475, 500 (1973).
We conclude that plaintiff can make no rational argument on the law or facts in support of the issues raised on appeal. Therefore, the motion for leave to proceed on appeal without prepayment of costs or fees is denied. The appeal is DISMISSED.
The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470