                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                         UNITED STATES COURT OF APPEALS                March 28, 2008
                                                                    Elisabeth A. Shumaker
                                     TENTH CIRCUIT                      Clerk of Court



 DALE ALLEN HUNT,

           Plaintiff-Appellant,
 v.                                                           No. 07-1400
 COLORADO DEPARTMENT OF                            (D.C. No. 05-cv-0175-REB-BNB)
 CORRECTIONS; PEGGY HEIL, Ex-                                (D. Colorado)
 Director of SOTMP, Office of Legal
 Affairs, in her individual and official
 capacity; JOE STOMMEL, Director of
 SOTMP, Office of Legal Affairs, in his
 individual and official capacity;
 RICHARD G. LINS, Therapist SOTMP,
 Office of Legal Affairs, in his individual
 and official capacity,

           Defendants-Appellees.



                                  ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       After examining the briefs and the appellate record, this panel has determined that

oral argument would not materially assist in the determination of this appeal. See Fed. R.



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without

oral argument.

       Dale Allen Hunt, a Colorado prisoner appearing pro se, appeals the district court’s

dismissal of his suit filed under 42 U.S.C. § 1983 for claimed violations of his due

process rights. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part,

reverse in part, and remand for further proceedings.

       In September 2000, Mr. Hunt pleaded guilty in Colorado state court to one count

of sexual assault and was sentenced to an indeterminate term of four years to life in

prison. Under Colorado law, a sex offender is only eligible for parole after successfully

progressing through “appropriate” treatment as part of his or her sentence. Colo. Rev.

Stat. § 16-11.7-105. This requires participation and successful completion of the two

phase Sex Offender Treatment and Monitoring Program (SOTMP). According to his

complaint, Mr. Hunt began Phase I of his treatment in April of 2002 and progressed to

Phase II that October. But two weeks after beginning Phase II, SOTMP administrators

expelled Mr. Hunt from the program because of his “denial of being a sex offender;

persistent minimization of the sex offense; denial or severe minimization of problem

areas and/or patterns of behavior; and failure to comply with any conditions of the

[SOTMP Phase II] contract.” He was not afforded the opportunity to challenge the basis

for his termination and his requests to be readmitted into the program were denied. Mr.

Hunt was ultimately allowed to re-enter the program in January of 2007, but at Phase I

rather than Phase II.

                                             2
       Mr. Hunt filed this complaint in March 2005, naming as defendants the Colorado

Department of Corrections’ (CDOC), as well as Peggy Heil, the ex-director of the

SOTMP, Joe Strommel, the current director of the SOTMP, and Richard Lins, a therapist

at the SOTMP, in their individual and official capacities. He claimed that his removal

from Phase II of the SOTMP violated the Eighth Amendment and infringed his right to

Due Process guaranteed by the Fourteenth Amendment. The district court dismissed his

complaint for failure to exhaust administrative remedies. We reversed in part, holding

that Mr. Hunt had exhausted his administrative remedies for his due process claims, but

affirmed the district court’s dismissal of his Eighth Amendment claim, finding that he had

failed to state a claim upon which relief could be granted. See Hunt v. Colo. Dept. of

Corrections, 194 Fed. Appx. 492 (10th Cir. 2006).

       The district court then reviewed his remaining claims for violations of his

substantive and procedural due process rights based on (1) his termination from Phase II

of the SOTMP; (2) the refusal to readmit him into Phase II; and (3) the denial of his

release on parole. He sought release on parole, an injunction requiring sex offender

treatment, and compensatory, punitive, and nominal damages. On remand, the district

court granted summary judgment against Mr. Hunt as to his due process claims, finding

that (1) Mr. Hunt’s request for release on parole is not cognizable under 42 U.S.C. §

1983; (2) the Eleventh Amendment bars Mr. Hunt’s claim against the Department of

Corrections; (3) the individuals named in his complaint are protected by qualified

immunity; and (4) Mr. Hunt’s readmission into Phase I rendered any claims for

                                             3
prospective relief moot.

       We review a district court’s grant of summary judgment de novo. Jones v. Salt

Lake County, 503 F.3d 1147, 1152 (10th Cir. 2007). Summary judgment should be

granted where “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). In reviewing a motion for summary judgment, we “construe all facts

and make reasonable inferences in the light most favorable to the nonmoving party.”

Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1108 (10th Cir. 2002). But while we

construe the pleadings of a pro se plaintiff liberally, this court “will not supply additional

factual allegations to round out a plaintiff’s complaint or construct a legal theory on a

plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

       Mr. Hunt appeals only the district court’s denial of injunctive relief, leaving the

district court’s dismissal of his claims for damages and request for release on parole

unchallenged. The sole argument he makes to this court is that he should be placed in

Phase II of the SOTMP and that his readmission at Phase I does not render his claim

moot. We have reviewed the parties’ filings with this court and the complete record on

appeal and conclude that the district court erred in dismissing Mr. Hunt’s claim for

prospective injunctive relief against Defendants Strommel and Lins.

       We first consider the Colorado Department of Corrections’ (CDOC) claim of a

lack of federal subject matter jurisdiction because of immunity under the Eleventh

                                               4
Amendment to the United States Constitution. See Thompson v. State of Colorado, 258

F.3d 1241, 1245 (10th Cir. 2001). The Eleventh Amendment provides that “[t]he judicial

power of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. It is well

established that under the Eleventh Amendment, sovereign immunity prohibits federal

courts from entertaining suits against states brought by their own citizens or citizens of

another state without their consent. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S.

299, 304 (1990). This rule extends to state agencies functioning as an arm of the state.

Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977). The Eleventh

Amendment is not without exceptions, however, as pursuant to its powers under Section

Five of the Fourteenth Amendment, Congress may enact a statute abrogating a state’s

Eleventh Amendment immunity if the text of the statute explicitly manifests a desire to do

so. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). A state may also waive its Eleventh

Amendment immunity through a clear expression of its intent to waive. Edelman v.

Jordan, 415 U.S. 651, 673 (1974). But Congress did not abrogate Eleventh Amendment

immunity through Section 1983, Quern v. Jordan, 440 U.S. 332, 345 (1979), and the

CDOC is an agency of the State of Colorado that has not expressly waived its sovereign

immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988).

Accordingly, Mr. Hunt’s claim against the CDOC is barred as a matter of law.

       Mr. Hunt also asserts claims against defendants Heil, Strommel, and Lins for


                                              5
actions taken in their official capacities as prison administrators. While suits filed against

public officials for actions taken pursuant to their official duties are effectively suits

against the state entity itself, the Supreme Court has recognized an exception to the

Eleventh Amendment for such actions where a plaintiff is seeking prospective

enforcement of their federal rights. See Ex parte Young, 209 U.S. 123, 159-60 (1908).

But Young and its progeny make clear that this exception “may not be used to obtain a

declaration that a state officer has violated a plaintiff’s federal rights in the past” or as a

means for seeking money damages. Buchwald v. University of New Mexico School of

Medicine, 159 F.3d 487, 495 (10th Cir. 1998) (citations and quotations omitted). So

while the Eleventh Amendment bars claims against the three named individuals for

money damages and relief for prior acts, Mr. Hunt may seek to vindicate his federal rights

through a request for prospective injunctive relief.

       Mr. Hunt seeks an injunction placing him in Phase II of the SOTMP. The district

court found that this claim was rendered moot by his readmission to the SOTMP at Phase

I. We disagree. Without commenting on the merits of Mr. Hunt’s claim, the relief he

requested differs from the accommodation he has been afforded. There is a difference

between Phase I and Phase II placement, and the liberty interest Mr. Hunt claims

entitlement to is Phase II placement. His claim is not moot. Hence we must reverse and

remand for further proceedings on his due process claim seeking injunctive relief.

       As Mr. Hunt may only pursue prospective injunctive relief, however, we must

dismiss his claim against Defendant Heil. She is the ex-director of SOTMP and no longer


                                                6
has the authority to provide him with the relief of reinstatement into Phase II of the

SOTMP. This makes his claim with respect to Defendant Heil moot.

       Defendants Strommel and Lins assert a qualified immunity defense to Mr. Hunt’s

this claim for prospective injunctive relief, claiming an exemption as government officers

from having “to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). But the privilege is limited to claims against officers acting in

their individual capacities for money damages. Hammons v. Saffle, 348 F.3d 1250, 1257

(10th Cir. 2003). All such claims have been dismissed.

       Accordingly, we AFFIRM the district court’s dismissal of Mr. Hunt’s claims

against the CDOC and Defendant Heil. But we REVERSE and REMAND to the district

court for further proceedings regarding his due process claims brought against Defendants

Lins and Strommel for the injunctive relief of placement in Phase II of the SOTMP

program.

                                                  Entered for the Court,


                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                              7
