FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 30, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    DOUGLAS JAY WEST,

                Plaintiff-Appellant,
                                                         No. 08-1168
    v.                                       (D.C. No. 1:06-CV-1805-WYD-BNB)
                                                          (D. Colo.)
    WARDEN, Fremont C.F.; CHARLES
    OLIN, Director of
    Mental Health/SOTP, Fremont C.F.;
    JOHN MCGILL, Therapist, Mental
    Health/SOTP, Fremont C.F.,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Plaintiff-appellant Douglas Jay West, a prisoner of the State of Colorado

appearing pro se, appeals from orders of the district court that dismissed some of

his claims and granted summary judgment to defendants on the remaining claims



*
       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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
in this civil rights suit brought pursuant to 42 U.S.C. § 1983. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

      Appellant was convicted in state court of attempted sexual assault and was

undergoing treatment through the Sex Offender Treatment Program (SOTP) while

incarcerated at the Fremont Correctional Facility. He was terminated from the

SOTP in April 2002. He was readmitted, but terminated again in July 2003. He

has not been readmitted to the SOTP.

      Appellant filed this suit, alleging that: (1) he was unfairly denied the

opportunity to complete the SOTP; (2) he was terminated from the SOTP unfairly

and due to negligence on the part of medical personnel; (3) defendants Olin and

McGill were biased and prejudiced against him, deliberately depriving him of the

opportunity to complete the program; (4) he was unfairly denied good time credits

on account of his termination from the program; (5) he has been given an

excessively high classification disproportionate to his offense; and (6) prison

officials did not consider his bipolar disorder when deciding to terminate him

from the program.

      In an order filed on October 12, 2006, the district court dismissed, as

legally frivolous, appellant’s claims against the Warden of the Fremont

Correctional Facility because appellant did not assert that the Warden personally

participated in the alleged constitutional violations. See R., Doc. 6. In response

to defendants-appellees’ subsequent motion for summary judgment, the magistrate

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judge recommended in a report filed on February 1, 2008, that the motion be

granted. 

at 16. The magistrate judge reasoned that to the extent that

appellant was attempting to sue appellees in their official capacities for monetary

damages, those claims should be dismissed based on appellees’ sovereign

immunity under the Eleventh Amendment. 

The magistrate judge

further reasoned that appellant’s second and fourth claims were barred by the

applicable statute of limitations, but that claims one, three, five, and six were not

time-barred. See 

The magistrate judge nevertheless concluded that

appellees were entitled to qualified immunity on claims one, three, five, and six.

Appellant filed objections to the magistrate judge’s report. 

The district court adopted the magistrate judge’s recommendation and

granted summary judgment in favor of appellees. 

      To the extent that appellant’s claims were dismissed based on appellees’

sovereign immunity, we review the dismissal de novo. See Melton v. City of

Okla. City, 

, 726 (10th Cir. 1989). We review the grant of summary

judgment on appellant’s remaining claims de novo. Bass v. Potter, 

, 1102 (10th Cir. 2008). “De novo review also applies to a district court’s

ruling on the applicability of a statute of limitations.” 

is

pro se, we construe his pleadings liberally. Haines v. Kerner, 

,

520-21 (1972) (per curiam).




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      Appellant raises twelve arguments on appeal: (1) whether plaintiff had a

liberty interest per statutory legislation to participate in the mandated SOTP;

(2) whether defendants Olin and/or McGill deliberately, or through negligence,

obstructed plaintiff’s right to due process in violation of the 14th Amendment;

(3) whether plaintiff had a statutorily or constitutionally protected right to an

evidentiary hearing prior to his termination from the SOTP; (4) whether plaintiff

has been illegally classified to his detriment as a sexually violent predator as a

result of defendants’ recommendation; (5) whether plaintiff’s ability to exhaust

administrative remedies (i.e., the grievance process), in order to comply with

guidelines for the filing of a § 1983 civil claim was constructively prevented by

defendants’ negligence and/or deliberate acts of deception, falsity and

misinformation; (6) whether such deliberate misinformation, designed to mislead

plaintiff to believe he would be reinstated and/or reenrolled into the SOTP, thus

effectively influencing plaintiff to discontinue pursuit of remedy via the grievance

process, justified equitable tolling with respect to the statute of limitations;

(7) whether supervising officials, in addition to the named defendants, are liable

in their capacity as supervisors of the defendants for injury to the plaintiff;

(8) whether gross negligence on the part of defendants is cause for an award of

monetary damages to plaintiff; (9) whether gross negligence on the part of

defendants caused plaintiff to be denied good time credits that otherwise would

have been awarded to plaintiff, because plaintiff was mandated to participate in

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the SOTP from which he was terminated without due process, creating a

“Catch-22” situation whereby plaintiff lost the opportunity to earn early release

from prison, the same opportunity given to other inmates in the CDOC;

(10) whether plaintiff’s constitutional rights were violated by actions of

defendants, and whether those rights were clearly established at the time of

defendants’ conduct; (11) whether plaintiff had stated “no material facts” to

support his claims; and (12) whether defendants are justifiably entitled to

qualified immunity and/or sovereign immunity (based upon the 11th Amendment)

in view of evidence presented by plaintiff.

       As argument, appellant merely restates some of his issues on appeal; he

presents no reasoned argument supported by legal authorities or citation to the

record on appeal. Nevertheless, we have carefully reviewed the magistrate

judge’s recommendation and the district court’s orders in light of the parties’

arguments, the record on appeal, and the governing law. We are unpersuaded by

appellant’s arguments and affirm for substantially the reasons stated by the

district court.




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      The judgment of the district court is AFFIRMED. Appellant’s motion to

proceed in this court without prepayment of costs and fees is DENIED. Appellant

shall pay the fees within thirty days of the date of this order.


                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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