                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUL 2 1999
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 LARRY DARNELL SIMS,

          Plaintiff-Appellant,

 v.                                                               No. 99-1110
                                                                    (D. Colo.)
 ROBERT HICKOK, Supt. II; MAJOR STEVE                         (D.Ct. No. 97-Z-2121)
 GREEN; CAPT. DAVIS; CAPT. MARY WHITE;
 MAJOR SUSAN WORTHINGTON; LARRY HILL;
 LT. BLODGETT; SGT. CASSELBERRY; SGT.
 JOHNSON; LT. ROCHA; CAPT. LOCHART; SGT.
 RON ROCK; DON SCHUMACHER; ARISTEDES
 ZAVARAS, Exec. Dir., Colorado Dept. of Colorado,
 and UNKNOWN JOHN AND JANE DOES,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of




      *
          This order and judgment is not binding precedent except under the doctrines of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 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Larry Darnell Sims, a state inmate appearing pro se, appeals the

district court’s order dismissing his 42 U.S.C. § 1983 action for failure to state a

claim on which relief may be granted.



      Mr. Sims’ § 1983 action stems from incidents occurring at the Delta

Correctional Center where he claims he informed a correctional officer he felt a

seizure coming on and requested medical attention by a nurse, but the officer

ignored his request. Mr. Sims then suffered a seizure. Mr. Sims contends

correctional officers kicked, pushed, nudged, and shook him during the seizure.

Approximately four days after this incident, Mr. Sims claims the correctional

officers subjected him to racial and sexual slurs. After filing a grievance, Mr.

Sims suggests officials retaliated by placing him in administrative segregation

without just cause, even though his placement in administrative segregation

followed two prison disciplinary violations for refusal to work and disobeying a

lawful order. As a result of these incidents, Mr. Sims claims correctional officers

and their supervisors violated his constitutional rights under the First, Fifth,

Eighth, Ninth, and Fourteenth Amendments, and acted negligently in failing to


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protect him from harm and assault and battery.



      The district court assigned the matter to a magistrate judge who

recommended Mr. Sims’ complaint be dismissed. Even accepting Mr. Sims’

allegations as true, the magistrate judge concluded Mr. Sims’ complaint did not

state any claim on which relief could be granted because he suffered no

constitutional deprivation. Specifically, the magistrate judge determined that the

officers’ insults and slurs were insufficient to amount to an Eighth Amendment

violation, and that Mr. Sims had not shown he suffered any compensable harm or

alleged anything more than use of de minimis force. The magistrate judge also

concluded that Mr. Sims: (1) had no liberty interest in a non-administrative

segregation placement, and therefore, was not entitled to any sort of due process

before his placement into administrative segregation; (2) failed to allege how he

was treated differently than other, similarly situated inmates, thus failing to

establish an equal protection claim; and (3) failed to allege specific facts beyond

mere proximity in time, showing prison officials placed him in administrative

segregation because he filed a grievance. The magistrate judge further

determined Mr. Sims failed to allege grounds sufficient to support his Fifth and

Ninth Amendment claims.




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        As to Mr. Sims’ allegations against the correctional officers and

supervisors named in the complaint, the magistrate judge determined he failed to

allege facts implicating personal participation by many of them, and to the extent

Mr. Sims asserted claims against them in their official capacities, his claims were

barred by the Eleventh Amendment. Finally, the magistrate judge concluded Mr.

Sims’ removal from the Delta Correctional facility made his claim for injunctive

relief moot, and his allegation of negligence for assault and battery was a state

claim which the district court could decline to exercise jurisdiction over in

absence of any federal issues. After conducting a de novo review of the

magistrate judge’s recommendation and Mr. Sims’ objections thereto, the district

court issued a decision accepting the magistrate judge’s recommendation and

dismissing Mr. Sims’ complaint.



        On appeal, Mr. Sims raises the same issues presented to and addressed by

the magistrate judge and district court. He also raises a new and conclusory

allegation that Colorado Department of Corrections officials failed to exercise

control over those who abused him and failed to properly supervise and train

them.



        We review de novo the district court’s dismissal of a complaint for failure


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to state a claim on which relief may be granted. Sutton v. United Air Lines, Inc.,

130 F.3d 893, 896 (10th Cir. 1997), aff’d 1999 WL 407488 (U.S. Jun. 22, 1999)

(No. 97-1943). When reviewing a dismissal of a complaint, we treat all material

allegations as true and construe the complaint in favor of the plaintiff. Id. We

will uphold dismissal only if Mr. Sims can prove any set of facts in support of his

claim that entitles him to relief. Id.; see also Fed. R. Civ. P. 12(b)(6). As a pro

se litigant, Mr. Sims’ pleadings must be construed liberally and held to a less

stringent standard than formal pleadings drafted by lawyers. See Durre v.

Dempsey, 869 F.2d 543, 545 (10th Cir. 1989) (citing Haines v. Kerner, 404 U.S.

519, 520-21 (1972)). Despite the liberal construction afforded pro se pleadings,

we generally will not consider issues raised for the first time on appeal, Walker v.

Mather (In re Walker) 959 F.2d 894, 896 (10th Cir. 1992), or conclusory and

unsupported §1983 allegations, Durre, 869 F.2d at 545.



      We have conducted a de novo review of Mr. Sims’ arguments on appeal,

the magistrate judge’s recommendation and propositions of law on which he

relied, and the entire record on appeal. Our review leads us to conclude Mr. Sims

has alleged no facts that, even if true, would support his claims for relief. Thus,

for substantially the same reasons set forth by the magistrate judge and adopted

by the district court, we AFFIRM the district court’s dismissal of Mr. Sims’


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§ 1983 action. Accordingly, we deny his request to proceed in forma pauperis.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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