                                                                       FILED
                                                                United States Court of
                   UNITED STATES COURT OF APPEALS                   Appeals
                                                                    Tenth Circuit
                         FOR THE TENTH CIRCUIT
                       _________________________________
                                                                    July 9, 2019

                                                                Elisabeth A. Shumaker
    TOBI KILMAN,                                                    Clerk of Court

          Plaintiff - Appellant,

    v.                                               No. 19-1170
                                            (D.C. No. 1:19-CV-00090-LTB)
    THE COLORADO DEPARTMENT                           (D. Colo.)
    OF CORRECTIONS; RICK
    RAEMISCH, Executive Director of
    C.D.O.C.; KELLIE WASKO, Deputy
    Executive Director of C.D.O.C.;
    TRAVIS TRANI, Prisons Director
    of C.D.O.C.,

          Defendants - Appellees.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
               _________________________________

         This appeal involves a state prisoner’s claim for damages under 42

U.S.C. § 1983 based on the state’s failure to award good-time credits in



*
     Oral argument would not materially help us to decide this appeal, so
we have decided the appeal based on the appellate briefs and the record on
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
accordance with state law. The district court dismissed the suit as legally

frivolous, reasoning that the causes of action were premature, barred by the

Eleventh Amendment, and lacking a constitutional claim. We affirm,

concluding that the district court did not err in characterizing the suit as

legally frivolous.

      A suit is legally frivolous when it lacks an arguable basis in fact or

law. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In determining whether

the district court erred in dismissing the suit, we apply the abuse-of-

discretion standard. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.

2006). Applying this standard, we affirm the dismissal based on the

obvious applicability of the Eleventh Amendment and the absence of a

valid constitutional claim. 1

      The Eleventh Amendment prevents suit in federal court against states

and state agencies. E.g., Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186,

1195 (10th Cir. 1998). In addition, official-capacity suits for retrospective

relief against state officials are considered claims against the states

themselves. Trujillo v. Williams, 465 F.3d 1210, 1223 (10th Cir. 2006).


1
      The district court also ruled that the suit was premature under Heck
v. Humphrey, 512 U.S. 477 (1994). We need not address this aspect of the
ruling. The district court acted within its discretion regardless of whether
the suit had been premature. See McWilliams v. Colorado, 121 F.3d 573,
575 (10th Cir. 1997) (upholding dismissal based on frivolousness when the
claim was clearly barred by the Eleventh Amendment, declining to decide
whether the district court had correctly deemed the claim frivolous based
on grounds that it was repetitive).
                                          2
      One of the defendants is the Colorado Department of Corrections.

This defendant is a state agency, so it cannot be sued in federal court. See

Eastwood v. Dep’t of Corrs., 846 F.2d 627, 628, 631–32 (10th Cir. 1988)

(holding that a federal suit against the Oklahoma Department of

Corrections is barred by the Eleventh Amendment). The other three

defendants are state officials who are sued for retrospective relief in their

official capacities. So Mr. Kilman is also unable to assert these claims in

federal court. Given the obvious applicability of the Eleventh Amendment,

the district court had the discretion to treat the suit as legally frivolous.

See McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir. 1997) (holding

that a claim against the State of Colorado was properly dismissed as

frivolous because the State was protected by the Eleventh Amendment).

      Mr. Kilman argues that Congress could abrogate Eleventh

Amendment immunity. But Congress’s enactment of § 1983 did not

abrogate Eleventh Amendment immunity. Briscoe v. LaHue, 460 U.S. 325,

336–37 (1983).

      The district court reasoned not only that the suit was barred by the

Eleventh Amendment but also that the suit failed because of the absence of

a valid constitutional claim. Mr. Kilman argues in his opening brief that

the denial of credits resulted in a denial of due process and equal




                                           3
protection. 2 But he does not explain these theories on appeal, and his

complaint in district court did not include allegations of a constitutional

violation. The district court thus acted within its discretion in concluding

that Mr. Kilman had improperly invoked § 1983 as a remedy for an alleged

violation of state law.

                                     * * *

      Because the Eleventh Amendment obviously applied and the

complaint did not include a constitutional claim, the district court acted

within its discretion in dismissing the suit as frivolous. 3 We thus affirm the

dismissal.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




2
      In his complaint, Mr. Kilman alleged that state authorities were
violating Colorado law by failing to award good-time credits. But § 1983
does not encompass violations of state law. Clanton v. Cooper, 129 F.3d
1147, 1155 n.4 (10th Cir. 1997), overruled on other grounds by Becker v.
Kroll, 494 F.3d 904, 917–19, 922–24 (10th Cir. 2007).
3
     Though we affirm the dismissal, we grant leave to proceed in forma
pauperis.
                                          4
