Colby v. Herrick, 2017 U.S. App. LEXIS 3691

Ms. Summer Colby owned a horse (Winter); a dispute with her mother prompted the Colorado Brand Inspection Division (Division) to investigate and an inspector to seize the horse on July 22, 2011.
After nearly three years of litigation over ownership, Colby regained the horse.
The Colbys sued the Division and two Division officers (Herrick and Whitney) in federal court asserting federal due-process and related claims, plus state-law claims (not at issue on appeal).
The district court dismissed the suit; the Colbys appealed raising Eleventh Amendment and statute-of-limitations issues.
The Tenth Circuit concluded the Division is an arm of the state entitled to Eleventh Amendment immunity and that official-capacity damage claims against the officers are likewise barred.
The court held the § 1983 personal-capacity claims accrued at the July 22, 2011 seizure (or, at latest, within six weeks), and were thus time-barred by the two-year limitations period; remanded only to direct that Eleventh Amendment dismissals be without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Brand Inspection Division is protected by Eleventh Amendment immunity	Division is a self-funded ‘‘enterprise’’ and thus not an arm of the state	Division is an arm of the state under Colorado law and state control/funding links it to sovereign immunity	Division is an arm of the state; Eleventh Amendment bars suit (dismissal should be without prejudice)
Whether official-capacity damage claims against Herrick and Whitney are barred by Eleventh Amendment	Claims against officers should proceed despite Division immunity	Official-capacity damage claims are equivalent to suing the state and barred	Official-capacity damage claims are barred by Eleventh Amendment; dismissal should be without prejudice
When § 1983 personal-capacity claims accrued for limitations purposes	Accrual delayed until denial of a post-deprivation hearing or continuing violation	Accrued at the seizure when damage occurred; two-year limitations applies from that date	Claims accrued at seizure (July 22, 2011); suit filed nearly three years later is time-barred
Whether the continuing-violation or post-deprivation-hearing doctrines save timeliness	The tort continued while no hearing was provided; accrual delayed until hearing denial	The seizure was a discrete wrong; continued damages do not restart limitations; post-deprivation hearing was not promised	Continuing-violation doctrine inapplicable; accrual not tolled by continued damages or alleged delayed hearing

Arbogast v. Kan. Dep’t of Labor, 789 F.3d 1174 (10th Cir.) (standard for de novo review of Eleventh Amendment issue)
Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222 (10th Cir.) (restricting review to complaint allegations when resolving immunity)
Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569 (10th Cir.) (factors for determining arm-of-state status)
Sturdevant v. Paulsen, 218 F.3d 1160 (10th Cir.) (enumerating arm-of-state factors)
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (Eleventh Amendment immunity is jurisdictional; dismissal should be without prejudice)
Barnes v. United States, 776 F.3d 1134 (10th Cir.) (jurisdictional dismissals ordinarily without prejudice)
Wallace v. Kato, 549 U.S. 384 (2007) (accrual occurs when wrongful act causes damage)
Blake v. Dickason, 997 F.2d 749 (10th Cir.) (applying two-year limitations to § 1983 seizure claims)
Smith v. City of Enid, 149 F.3d 1151 (10th Cir.) (accrual when plaintiff knows or should know of constitutional violation)
Hudson v. Palmer, 468 U.S. 517 (1984) (post-deprivation process principles)
Mata v. Anderson, 635 F.3d 1250 (10th Cir.) (continuing-violation doctrine requires continuing wrongful acts)
Pike v. City of Mission, 731 F.2d 655 (10th Cir.) (continuing-violation doctrine cannot salvage discrete acts outside limitations period)
Stanko v. Maher, 419 F.3d 1107 (10th Cir.) (due-process analysis for brand-inspection seizures)