UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ABBY TISCARENO; and GUILLERMO TISCARENO,

Plaintiffs–Appellees,

v.

RICHARD ANDERSON, in his individual capacity and official capacity,

Defendant–Appellant,

LORI FRASIER; MARION WALKER; and WILLIAM BEERMAN, in their individual capacities; and INTERMOUNTAIN HEALTH CARE, INC., in its individual capacity,

Defendants. No. 09-4238

ORDER GRANTING PANEL REHEARING IN PART

Before LUCERO

, HARTZ

, and HOLMES , Circuit Judges.

Abby and Guillermo Tiscareno seek panel rehearing on both thei r federal and state

claims against Richard Anderson. With re spect to the Tiscarenos’ state claim, we

GRANT rehearing by the panel. Section IV of the panel’s March 21, 2011, opinion is FILED United States Court of Appeals Tenth Circuit



### April 26, 2011

Elisabeth A. Shumaker Clerk of Court-2- VACATED and replaced with the order issued herewith. We DENY panel rehearing on

all other issues raised in the Ti scarenos’ petition for rehearing.

Entered for the Court

Carlos F. Lucero Circuit JudgeUNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ABBY TISCARENO; and GUILLERMO TISCARENO,

Plaintiffs–Appellees,

v.

RICHARD ANDERSON, in his individual capacity and official capacity,

Defendant–Appellant,

LORI FRASIER; MARION WALKER; and WILLIAM BEERMAN, in their individual capacities; and INTERMOUNTAIN HEALTH CARE, INC., in its individual capacity,

Defendants. No. 09-4238 (D.C. No. 2:07-CV-00336-CW-DN) (D. Utah)

ORDER AND JUDGMENT *

Before LUCERO

, HARTZ

, and HOLMES , Circuit Judges.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit



### April 26, 2011

Elisabeth A. Shumaker Clerk of Court-2- In light of the Utah Supreme Court’ s decision in Jensen v. Cunningham , 2011 UT

17, No. 20090277 (Mar. 29, 2011), we vacated our earlier judgment as it pertained to

Abby and Guillermo Tiscareno’s claim under th e Utah Constitution. We now affirm the

district court’s denial of Richard Anderson ’s motion to dismiss th e state law claim for

lack of notice.

I

The facts and procedural background of this case are summarized in our earlier

opinion. See Tiscareno v. Anderson , 2011 WL 971338, *1-2 (1 0th Cir. Mar. 21, 2011).

Shortly after our opinion was filed, the Utah Supreme Court decided Jensen . 2011 UT

17. That case held without qualification or reservation that “the Utah Governmental

Immunity Act does not apply to claims alle ging state constitutional violations.” Id. at

¶ 51. We decline Anderson’s invitation to read this statement as limited to the facts in

Jensen . Instead, we conclude that the Utah Su preme Court meant preci sely what it said,

and determine that the Tiscarenos’ state la w claim, alleging a vi olation of the Utah

Constitution, is not barred by her fa ilure to file a notice of claim.

II

Accordingly, we AFFIRM the district court’s denial of Anderson’s motion to

dismiss the Tiscarenos’ state cl aim for lack of notice. We REMAND the matter to the-3- district court for proceedings consistent with our earlier opinion and this order. 1

Entered for the Court

Carlos F. Lucero Circuit Judge

1 We note that it is within the district c ourt’s discretion to continue to exercise jurisdiction in this pendant state matter, or the district court may dismiss the claim without prejudice. See United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd. , 210 F.3d 1207, 1220 (10th Cir. 2000).