F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           NOV 8 1999
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk


 RICHARD HARDIMAN,

          Plaintiff-Appellant,
 v.
                                                        No. 99-6091
                                                 (D.C. No. CIV-97-1105-L)
 LARRY FIELDS; OKLAHOMA
                                                       (W.D. Okla.)
 PARDON AND PAROLE BOARD,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.


      Plaintiff-Appellant Richard Hardiman (“Hardiman”), a state prisoner

appearing pro se, appeals from the district court’s entry of judgment in favor of

the Defendants-Appellees in this civil suit filed pursuant to 42 U.S.C. § 1983.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.



      *
        After examining appellant’s brief 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)(2) and 10th Cir. R.
34.1(G). 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
                                 BACKGROUND

      Hardiman filed an action seeking damages pursuant to § 1983 in the United

States District Court for the Western District of Oklahoma against Defendants-

Appellees Oklahoma Department of Corrections (“DOC”), former DOC director

Larry Fields (“Fields”), current DOC director James Saffle (“Saffle”), and the

Oklahoma Pardon and Parole Board (the “Board,” with the DOC, Fields, Saffle

and the Board referred to collectively as “Defendants”). (See Report and

Recommendation of Magistrate at 1.) Hardiman alleged that he had been

incarcerated beyond his legal release date in violation of the Eight and Fourteenth

Amendments of the Constitution. (See id.) Specifically, Hardiman claimed that

his work credits were improperly calculated and that this resulted in 300 days of

confinement beyond his actual termination date. (See Complaint at 2.) Hardiman

appeals the order of the district court granting Defendants’ Motion to

Dismiss/Motion for Summary Judgment on Hardiman’s § 1983 claim. Hardiman

also contends that the district court improperly denied his Motion for Appointment

of Counsel and failed to address his requests for discovery and a jury trial.

                                  DISCUSSION

A. Dismissal/Summary Judgment

      Our standard of review of the district court's grant of summary judgment is

de novo. See Anderson v. Coors Brewing Co., 

, 1175 (10th Cir.


                                         -2-
1999). Similarly, we review de novo a district court's dismissal of a cause of

action for failure to state a claim upon which relief can be granted. See Sutton v.

Utah State Sch. for the Deaf & Blind, 

, 1236 (10th Cir. 1999).

      On Defendants’ Motion to Dismiss/Motion for Summary Judgment, the

magistrate judge made a number of findings. With respect to Hardiman’s claim

that his Fourteenth Amendment due process rights had been violated, the

magistrate judge found that Hardiman failed to show that his work credits were

improperly calculated. The magistrate judge concluded that, without evidence that

conduct of Fields or Saffle violated his due process rights, Fields and Saffle were

entitled summary judgment based on the defense of qualified immunity. (See

Magistrate Report at 4-7.) In addressing Hardiman’s Eighth Amendment claim,

the magistrate judge observed that Hardiman had not stated a cognizable claim

because he did not allege that Saffle or Fields acted with deliberate indifference to

Hardiman’s serious medical, physical, or safety needs. (See Magistrate Report at

8.) The magistrate judge also concluded that Fields and Saffle were entitled to

summary judgment on Hardiman’s Fourteenth and Eighth Amendment claims

because he did not show that either Fields or Saffle personally participated in

either of the alleged constitutional deprivations. (See Magistrate Report at 3, 8.)

The magistrate judge further found that the claims against the DOC, the Board,




                                         -3-
and Saffle, 1 to the extent Saffle was sued in his official capacity, should be

dismissed based on their Eleventh Amendment immunity. (See Magistrate Report

at 9.) Finally, the magistrate judge concluded that Wayne White (“White”), the

District IV Pardon and Parole Supervisor, who had been served with process but

was not mentioned in the complaint, should be dismissed because the plaintiff

alleged no personal participation by White. (See Magistrate Report at 3,9.)

      Hardiman filed an objection to the magistrate judge’s recommendations,

arguing that his work credits were miscalculated, that Fields and Saffle were not

immune from suit, and that he had sufficiently alleged an Eighth Amendment

claim. (See Plaintiff’s Objection to Magistrate’s Report.) After conducting de

novo review of Hardiman’s claims, the district court: (1) adopted the

recommendations of the magistrate judge; (2) granted summary judgment for Field

and Saffle on the grounds of qualified immunity and lack of personal participation;

(3) granted the motion to dismiss for the DOC and Saffle (in his official capacity)

on the basis of Eleventh Amendment immunity; (4) dismissed the Board under 28

U.S.C. § 1915A on the basis of Eleventh Amendment immunity; and (5) dismissed




      1
        Although Fields, as the former Director of DOC, had been sued in his
official capacity, the district court substituted Saffle as a party defendant for
Fields pursuant to Fed. R. Civ. P. 25(d)(1) by Order of July 10, 1997. (See
Magistrate Report at 3.) Hardiman does not appeal this Order.

                                         -4-
White as a party under § 1915A for failure of the plaintiff to allege any personal

participation. (See Order of February 3, 1999.)

      We have carefully reviewed the briefs and the record on appeal. We affirm

for substantially the same reasons as those set forth in the magistrate judge’s

thorough and well-supported December 14, 1998 Supplemental Report and

Recommendation, as adopted by the district court in its February 3, 1999 Order. 2



B. Motion for Appointment of Counsel

      “We review the denial of appointment of counsel in a civil case for an abuse

of discretion.” Rucks v. Boergermann, 

, 979 (10th Cir.1995). The

district court may appoint counsel for an indigent plaintiff if, under the totality of


      2
        Hardiman is currently in prison, serving a sentence that is separate and
distinct from the sentence at issue in this case. Hardiman’s complaint and brief
on appeal suggest that he brought this § 1983 action challenging his initial
confinement in an effort to reduce the sentence he is currently serving. To the
extent that Hardiman is making such a claim, Hardiman cannot receive relief in
federal court under § 1983. The United States Supreme Court has held that a writ
of habeas corpus is the sole federal remedy available to a state prisoner
challenging his physical imprisonment if the relief he seeks is immediate or
speedier release from that confinement. See Preiser v. Rodriguez, 

,
500, 

, 36 L. E.2d 439 (1973). Moreover, this court has held that a
petitioner may bring a federal habeas action pursuant to 28 U.S.C. § 2254 to
challenge his present sentence to the extent it has been enhanced by an allegedly
invalid prior conviction. See Gamble v. Parsons, 

, 118-19 (10th Cir.
1990). This court wishes to observe, however, that if we could have reached the
question concerning the validity of Hardiman’s present sentence as it relates to
his earlier confinement, we would have found that it was also without merit for
the reasons stated above.

                                         -5-
the circumstances, the denial of counsel would result in a fundamentally unfair

proceeding, see McCarthy v. Weinberg, 

, 839-40 (10th Cir.1985),

considering the merits of the claims, the nature of the factual issues, the litigant's

ability to present the claims, and the complexity of the legal issues, see 

. We find that the district court did not abuse its discretion in denying

Hardiman's motion for appointment of counsel. His claims are without merit and,

therefore, the proceeding was not fundamentally unfair absent appointment of

counsel.



C. Requests for Jury Trial and Discovery

      Hardiman argues that the district court failed to consider his motion for

discovery. The record indicates that Hardiman made reference to the fact that

discovery would assist him in making his case, but made no formal discovery

motion. (See Plaintiff’s Objection to Motion to Dismiss at 8.) Even if we were to

find that Hardiman made such a motion, any error on the part of the district court

in failing to consider Hardiman’s request for discovery would not warrant remand

for consideration of the issue by the district court. This court has observed that

the defense of “qualified immunity [in a § 1983 action] entails a right to have suits

dismissed at ‘the earliest possible stage of the litigation,’ sparing officials not only

from liability but also from discovery and trial.” Franklin Sav. Corp. v. United


                                          -6-
States, 

, 1138 (10th Cir. 1999) (quoting Anderson v. Creighton, 

, 646 n.6, 

, 

(1987)). Because summary

judgment against Hardiman was appropriate in this case, we conclude that

Hardiman was not entitled to discovery, and that no error flowed from the district

court’s failure to consider Hardiman’s discovery request.

      Finally, we find that Hardiman had no right to present his claims to a jury

based on our decision to affirm the district court’s grant of summary judgment.

      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



                                      David M. Ebel
                                      Circuit Judge




                                        -7-