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Colby v. Herrick

United States Court of Appeals, Tenth Circuit

March 1, 2017

SUMMER COLBY; JAMES R. COLBY, Plaintiffs - Appellants,
v.
MICHAEL HERRICK; CHRIS WHITNEY, as Commissioner of the Brand Inspection Division; BRAND INSPECTION DIVISION, Defendants-Appellees, and COUNTY AND DISTRICT COURT OF FREMONT COUNTY; THE HONORABLE NORMAN COOLING; Defendants.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-01860-MSK-KLM)

         Submitted on the briefs.[*]

          Summer R. Colby and James Colby, Grand Junction, Colorado, Pro-se Plaintiffs-Appellants.

          Cynthia H. Coffman, Attorney General, and Andrew M. Katarikawe, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

          Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.

          BACHARACH, Circuit Judge.

         This appeal grew out of a battle over Winter, a horse that belonged to Ms. Summer Colby. Ms. Colby and her mother grew estranged and wrangled over who owned Winter. The mother allegedly complained to the Colorado Department of Agriculture, which responded by sending someone from the Brand Inspection Division to investigate. After investigating, the inspector seized the horse, prompting Ms. Colby and her mother to rumble in court over ownership. After almost three years, Ms. Colby prevailed and got her horse back.

         When the horse was returned to Ms. Colby, she and her husband sued the Division and two of its officers, but the district court dismissed the action. The Colbys appeal, generating issues involving the Eleventh Amendment and the statute of limitations.

         The Eleventh Amendment precludes anyone from suing an arm of the state or asserting a damage claim against state officers in their official capacities. The Division is an arm of the state entitled to Eleventh Amendment immunity. And two of the defendants (Mr. Michael Herrick and Mr. Chris Whitney) are

• employees of an arm of the state
• being sued in their official capacities for damages.

         These claims are precluded by the Eleventh Amendment.

         After dismissal of these claims, the Colbys would be left with federal claims for damages against Mr. Herrick and Mr. Whitney in their personal capacities.[1] For these claims, the Colbys had to sue within two years of when the cause of action accrued. The federal claims for damages accrued when the inspector seized the horse, which took place more than two years before the Colbys sued. Thus, the limitations period expired on the federal claims for damages against Mr. Herrick and Mr. Whitney in their personal capacities.

         In light of Eleventh Amendment immunity and expiration of the limitations period, we conclude that the district court properly dismissed all of the claims.

         1. Eleventh Amendment Immunity

         The defendants include the Brand Inspection Division and two of its officers. The Division enjoys Eleventh Amendment immunity as an arm of the state. With this status, the Division cannot be sued in federal court. Nor can the Colbys bring claims for damages against the two officers in their official capacities.

         A. Standard of Review

         On the issue of Eleventh Amendment immunity, we engage in de novo review. Arbogast v. Kan. Dep't of Labor, 789 F.3d 1174, 1181 (10th Cir. 2015). In conducting this review, we restrict ourselves to the factual allegations in the complaint because the defendants have not pointed to any other evidence. See Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010).

         B. Claims Against the Brand Inspection Division

         Applying de novo review, we conclude that the district court properly held that the Division enjoyed Eleventh Amendment immunity.

         Eleventh Amendment immunity extends to governmental entities that are considered arms of the state. Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574 (10th Cir. ...


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