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 their federal and state 

claims against Richard Anderson. With respect 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 Tiscarenos’ petition for rehearing. 

Entered for the Court 

 

Carlos F. Lucero 

 Circuit Judge 
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 

(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 This order is not binding precedent except under the doctrines of law of the case, 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 the Utah Constitution. We now affirm the 

district court’s denial of Richard Anderson’s motion to dismiss the 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 (10th 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 alleging 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 Supreme Court meant precisely what it said, 

and determine that the Tiscarenos’ state law claim, alleging a violation of the Utah 

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

II 

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

dismiss the Tiscarenos’ state claim 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 court’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).