                                                                              F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               APR 14 1997
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 JESSE L. GARCIA,

               Plaintiff-Appellant,

 v.                                                  Case No. 96-2136

 DON BURDINE, Administrator, Curry                   (D.C. No. 96-373 LH/LCS)
 County Jail, and ROSE WORKHOUSER,                   (District of New Mexico)
 Supervisor, in their official and individual
 capacity,

               Defendants-Appellees.



                              ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



       After examining the briefs and the 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.




       *
               This order and judgment is not binding precedent, except under the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.
       Plaintiff Jesse L. Garcia, an inmate incarcerated in the Western New Mexico

Correctional Facility in Grants, New Mexico, filed this action pursuant to 42 U.S.C. §

1983 alleging that the defendants, Don Burdine and Rose Workhouser, the Administrator

and Supervisor of the Curry County Jail in Clovis, New Mexico, violated his rights under

the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. In his

complaint, Mr. Garcia alleges that, after discovering cigarettes in his cell, the defendant

officials placed him in “15 days lock down with loss of all [privileges]” without

conducting a hearing. Rec doc. 1, at 1. Mr. Garcia sued the defendants in both their

official and individual capacities.

         The district court dismissed Mr. Garcia’s complaint as frivolous, citing 28

U.S.C. § 1915(d) (now recodified as 28 U.S.C. § 1915(e)(2), part of the Prison Litigation

Reform Act of 1996). The court concluded that both the Due Process and Eighth

Amendment claims against the defendants in their official capacity were barred by the

Eleventh Amendment. As to Mr. Garcia’s due process claim against the defendants in

their individual capacity, the court applied Sandin v. Connor, 115 S. Ct. 2293 (1995),

reasoning that he had failed to allege facts indicating that the fifteen day lockdown

constituted an “atypical, significant deprivation in which a state might conceivably create

a liberty interest . . . [or which would] invoke the procedural guarantees of the Due

Process Clause.” Rec. doc. 8, at 3 (Memorandum Opinion filed June 17, 1996) (quoting




                                              2
Sandin, 115 S. Ct. at 2301-02). As to the Eighth Amendment claim, the court stated that

Mr. Garcia had failed to allege that he had suffered cruel and unusual punishment.

       Under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), the district court “shall dismiss the

case at any time if the court determines that . . .the action . . . is frivolous or malicious” or

“fails to state a claim upon which relief may be granted.” A complaint may be dismissed

as frivolous only if “it lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989); see also Fratus v Deland, 49 F.3d 673, 674 (10th Cir.

1995). A complaint is subject to dismissal for failure to state a claim only if the plaintiff

can prove no set of facts that would entitle him to relief, accepting the well-pleaded

allegations as true and viewing them in the light most favorable to the plaintiff. We

construe Mr. Garcia’s pro se pleadings liberally. See Haines v. Kerner, 404 U.S. 512,

520-21 (1972). See Yoder v. Honeywell, 104 F.3d 1215, 1224 (10th Cir. 1997). We

review the district court’s dismissal under § 1915(d) for an abuse of discretion. See

Denton v. Hernandez, 504 U.S. 25, 33-35 (1992); Fratus, 49 F.3d at 674. However, the

dismissal of a complaint for failure to state a claim is subject to de novo review. See

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir. 1996).

       We conclude that the district court did not abuse its discretion in dismissing as

frivolous both of Mr. Garcia’s claims against the defendants in their official capacities

and in dismissing Mr. Garcia’s Eighth Amendment claim against the defendants in their

individual capacities. As to the official capacity claims, the district court correctly noted


                                               3
that an action for money damages against a state official acting in his or her official

capacity constitutes a claim against the state itself and is therefore barred by the Eleventh

Amendment. See Will v. Michigan Dep’t of Police, 491 U.S. 58, 71 (1989); White v.

Colorado, 82 F.3d 364, 366 (10th Cir. 1996). As to the individual capacity Eighth

Amendment claim, Mr. Garcia’s complaint does not allege that he “suffered from

wantonly or unnecessarily inflicted pain or grossly disproportionate treatment.” Abbott v.

McCotter, 13 F.3d 1439, 1441-42 (10th Cir. 1994) (affirming § 1915(d) dismissal of

Eighth Amendment claim).

       As to Mr. Garcia’s due process claim against the defendants in their individual

capacities, we note that, in order to decide whether an inmate’s placement in segregation

triggers the protections of the Due Process Clause, a court must compare the conditions in

segregation with “the ordinary incidents of prison life” and then determine whether these

conditions constitute an “atypical and significant hardship.” Sandin, 115 S Ct. at 2300. In

his complaint, Mr. Garcia alleges only that he was placed in fifteen days’ segregation

with a loss of all privileges. He does not allege specific facts indicating that this

segregation involved an “atypical and significant hardship. . . in relation to the ordinary

incidents of prison life.” Sandin, 115 S. Ct at 2300. Accordingly, we conclude that Mr.

Garcia has failed to state a claim for violation of his rights under the Due Process Clause.




                                               4
       We therefore affirm the district court’s dismissal of Mr. Garcia’s Eighth

Amendment and Fourteenth Amendment Due Process claims against the defendants in

their official and individual capacities.

              The mandate shall issue forthwith.

                                                   Entered for the Court,



                                                   Robert H. Henry
                                                   Circuit Judge




                                             5
