                     UNITED STATES COURT OF APPEALS
Filed 1/9/97
                            FOR THE TENTH CIRCUIT



    HASKELL WILLIAMS,

               Plaintiff-Appellant,

    v.                                                 No. 96-6121
                                                 (D.C. No. CIV-95-542-T)
    LARRY FIELDS; SUSAN                                (W.D. Okla.)
    WALLACE, DELORES RAMSEY;
    JOHN WILSON; MICHAEL
    ADDISON; BARBARA WRIGHT;
    MICHAEL CODY; GAYLE KRIEN;
    BILL BENNETT; KEN HOLLOWAY;
    MARK SHIPMAN; OKLAHOMA
    DEPARTMENT OF CORRECTIONS,

               Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.




*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Haskell Williams, an Oklahoma state prisoner appearing pro se,

appeals from the district court’s entry of judgment in favor of defendants in this

civil rights suit filed pursuant to 42 U.S.C. § 1983. We have jurisdiction under 28

U.S.C. § 1291, and affirm.

      Plaintiff sued the Oklahoma Department of Corrections (DOC), its director,

and several DOC employees, seeking the recalculation of his earned credits and

damages. Plaintiff claims he was illegally kept in custody beyond the date on

which he should have been released.

      On defendants’ motion to dismiss or for summary judgment, the magistrate

judge found that the DOC was entitled to dismissal based on its Eleventh

Amendment immunity, and that the individual defendants sued in their official

capacities were entitled to dismissal because they were not “persons” within the

meaning of § 1983. The magistrate judge further found that plaintiff failed to

show that each of the remaining defendants personally participated in the alleged

violation of his constitutional rights, or that his procedural rights were not

adequately safeguarded. Finally, the magistrate judge found that it was only after


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the suit was filed and defendants had filed their motion to dismiss or for summary

judgment that plaintiff first provided a factual basis for his allegation that

defendants erred in computing his sentence. Because defendants then

recalculated plaintiff’s discharge date, applied the extra time served to plaintiff’s

sentence on a new charge, and expunged a prison disciplinary action taken after

plaintiff’s correct discharge date, the magistrate judge found that plaintiff could

not show defendants were deliberately indifferent to his rights to support an

Eighth Amendment claim. Plaintiff filed objections to the magistrate judge’s

report and recommendation, arguing that he had made out an Eighth Amendment

claim and that defendants were not entitled to Eleventh Amendment immunity.

The district court adopted the magistrate judge’s report and recommendation,

adding only that all of the defendants sued in their official capacities were also

entitled to Eleventh Amendment immunity.

       On appeal, plaintiff contends that: (1) defendants are not entitled to

Eleventh Amendment immunity because they admitted in the district court that

they made a mistake in computing plaintiff’s sentence; (2) defendants each

personally participated in the alleged violation of his rights because he

complained to them of the asserted error in his sentence; and (3) defendants were

deliberately indifferent to his illegal confinement because they did not correct the

error until after he filed suit.


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      Plaintiff did not raise his second argument in his objections to the

magistrate judge’s report and it is therefore waived. See Moore v. United States,

950 F.2d 656, 659 (10th Cir. 1991). Otherwise, we have carefully reviewed the

briefs and the record on appeal. Plaintiff’s remaining claims of error are without

merit. We affirm for substantially the same reasons as those set forth in the

magistrate judge’s thorough and well-supported February 2, 1996 report and

recommendation, as adopted by the district court in its March 18, 1996 order.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    William F. Downes
                                                    District Judge




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