* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

.

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

HASKELL WILLIAMS,

Plaintiff-Appellant,

v. LARRY FIELDS; SUSAN 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. No. 96-6121 (D.C. No. CIV-95-542-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Haskell Williams, an Oklahoma state priso ner appearing pro se, appeals from the district court’s entry of judgmentin favor of defendants in this civil rights suit filed pursuant to 42 U.S.C. § 198 3. We have jurisdiction under 28 U.S.C. § 1291, and affirm. Plaintiff sued the Oklahoma Department of Correctio ns (DOC), its director, and several DOC employees, seeking the recalculatio n 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 jud gment, the magistrate judge found that the DOC was entitled to dismissal based on its Eleventh Amendment immunity, and that the individual defenda nts sued in their official capacities were entitled to dismissal because they were not “persons” within the meaning of § 1983. The magistrate judge further fo und that plaintiff failed to show that each of the remaining defendants personal ly participated in the alleged violation of his constitutional rights, or that his procedural rights were not adequately safeguarded. Finally, the magistrate ju dge found that it was only after-3-

the suit was filed and defendants had filed their m otion to dismiss or for summary judgment that plaintiff first provided a factual ba sis for his allegation that defendants erred in computing his sentence. Becaus e defendants then recalculated plaintiff’s discharge date, applied th e extra time served to plaintiff’s sentence on a new charge, and expunged a prison dis ciplinary action taken after plaintiff’s correct discharge date, the magistrate judge found that plaintiff could not show defendants were deliberately indifferent t o 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 Elev enth Amendment immunity. The district court adopted the magistrate judge’s r eport and recommendation, adding only that all of the defendants sued in thei r 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 i n the district court that they made a mistake in computing plaintiff’s senten ce; (2) defendants each personally participated in the alleged violation of his rights because he complained to them of the asserted error in his sen tence; and (3) defendants were deliberately indifferent to his illegal confinementbecause they did not correct the error until after he filed suit.-4-

Plaintiff did not raise his second argument in his objections to the magistrate judge’s report and it is therefore waive d. 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 remai ning claims of error are without merit. We affirm for substantially the same reason s 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 fo r the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

William F. Downes District Judge