SUMMER COLBY; JAMES R. COLBY, Plaintiffs - Appellants,
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.
from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-01860-MSK-KLM)
on the briefs.[*]
R. Colby and James Colby, Grand Junction, Colorado, Pro-se
Cynthia H. Coffman, Attorney General, and Andrew M.
Katarikawe, Senior Assistant Attorney General, Denver,
Colorado, for Defendants-Appellees.
HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
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
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
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.
claims are precluded by the Eleventh Amendment.
dismissal of these claims, the Colbys would be left with
federal claims for damages against Mr. Herrick and Mr.
Whitney in their personal capacities. 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.
light of Eleventh Amendment immunity and expiration of the
limitations period, we conclude that the district court
properly dismissed all of the claims.
Eleventh Amendment Immunity
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
Standard of Review
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).
Claims Against the Brand Inspection Division
de novo review, we conclude that the district court properly
held that the Division enjoyed Eleventh Amendment immunity.
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. ...