PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

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. 

No. 16-1120 

________________________________ 

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.*

 

*

 We do not believe that oral argument would be helpful. As a result, 

we are deciding the appeal based on the briefs. See Fed. R. App. P. 

34(a)(2); 10th Cir. R. 34.1(G). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 1, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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. 

 

1

 The Colbys also asserted state-law claims, but they are not involved 

in this appeal. 
4 

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. 1996). Our precedents suggest five potential 

factors: 

1. How is the Division characterized under Colorado law? 

2. How much guidance and control does the State of Colorado 

exercise over the Division? 

3. How much funding does the Division receive from the State? 

4. Does the Division enjoy the ability to issue bonds and levy 

taxes? 
5 

5. Does the State of Colorado bear legal liability to pay a 

judgment against the Division? 

Sturdevant v. Paulsen, 218 F.3d 1160, 1166 (10th Cir. 2000). These factors 

lead us to conclude that the Division is considered an arm of the state. 

 On the first factor, Colorado law treats the Division as part of the 

state government. See People v. Lange, 110 P. 68, 70 (Colo. 1910) (“The 

State Board of Stock Inspection Commissioners is but an auxiliary of the 

state government.”). The Division participates in state government as a 

state agency. See Alfred v. Esser, 15 P.2d 714, 715-16 (Colo. 1932) 

(characterizing an action against the Colorado Board of Stock Inspection as 

an action against a state agency). The agency’s inspectors are Colorado law 

enforcement officers, with the power to make arrests for violations of state 

law. See Colo. Rev. Stat. § 35-53-128; Delta Sales Yard v. Patten, 892 

P.2d 297, 301 (Colo. 1995); see also R. at 339, 353 (the Colbys’ allegation 

that the Division’s inspectors have limited arrest powers in the exercise of 

their statutory duties). 

 Second, the State of Colorado exercises considerable guidance and 

control over the Division. The Division is considered a part of the state 

Department of Agriculture. Colo. Rev. Stat. § 24-1-123(4)(g)(I). As a 

result, the Division is subject to control by state officials. For example, the 

Division’s stock inspection commissioners are appointed and removed by 

the governor. Id. § 35-41-101(1); see also R. at 336 (the Colbys’ allegation 
6 

that the governor appoints five board members and can remove these board 

members for cause). These powers support treating the Division as an arm 

of the state. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 575-77 

(10th Cir. 1996) (holding that an agency constituted an arm of the state 

when fifteen of the sixteen board members had been appointed by the 

governor). 

 The third and fourth factors, involving the amount of funding 

received from the State and the authority to issue bonds, cut both ways. 

The Colbys allege in the third amended complaint that the Division is 

entirely self-funded.2

 R. at 337. And the State Board of Stock 

Commissioners is entitled to issue bonds worth up to $10 million to pay 

the Division’s expenses. Colo. Rev. Stat. § 35-41-101(5)(a); see also R. at 

338 (the Colbys’ allegation that the State Board of Stock Commissioners 

can issue revenue bonds up to $10 million). The self-funding and power to 

issue bonds cut against Eleventh Amendment immunity. 

But the Division is entitled to participate in the Colorado risk 

management fund, which obtains money from state appropriations. Colo. 

 

2

 Colorado law provides that the Division is considered an “enterprise” 

for purposes of the Colorado Constitution, article X, section 20. Colo. Rev. 

Stat. § 35-41-101(5)(1); see also R. at 337, 357 (the Colbys’ allegation 

that the Division is a state-created enterprise). Under the Colorado 

Constitution, an “enterprise” is a government-owned business that receives 

less than 10% of its annual revenue from state and local governments. 

Colo. Const. art. X, § 20(2)(d). 
7 

Rev. Stat. §§ 24-30-1502(5)(a), 24-30-1510(3)(a). This use of state money 

supports consideration of the Division as an arm of the state. See Watson v. 

Univ. of Utah Med. Ctr., 75 F.3d 569, 576-77 (10th Cir. 1996) (holding 

that a state medical center is an arm of the state, although 95-96.5% of the 

budget is self-funded, because the bulk of any judgment would come from 

the state’s risk management fund). 

 The final consideration is whether the State bears legal liability to 

pay a judgment against the Division. The Division does not address this 

factor. At least some of the Division’s fees are placed with the state 

treasurer. Colo. Rev. Stat. § 35-55-115. But we lack enough information to 

conclusively decide whether the State of Colorado’s Treasury would be 

legally obligated to satisfy a judgment against the Division. 

For the sake of argument, we may assume that a judgment against the 

Division would not legally obligate the State to pay out of the state 

treasury. Even with this assumption, however, the remaining factors would 

require us to treat the Division as an arm of the state. See Sutton v. Utah 

State Sch. for Deaf & Blind, 173 F.3d 1226, 1233 (10th Cir. 1999) (holding 

that an entity constituted an arm of the state when it was unclear how the 

entity satisfies money judgments, reasoning that the entity’s board 

members served as members of the state’s board of education). 
8 

* * * 

The first and second factors support characterization as an arm of the 

state, and the third and fourth factors cut both ways. Even if the fifth 

factor favors the Colbys, the balance of factors would lead us to regard the 

Division as an arm of the state. See Colorado v. United States, 219 F.2d 

474, 477 (10th Cir. 1954) (stating that Colorado conducts its inspections 

through the State Board of Stock Inspection Commissioners in Colorado’s 

“sovereign capacity as a state”). This status triggers the Eleventh 

Amendment, insulating the Division from suit in federal court. Because the 

Eleventh Amendment applies, the district court was right to dismiss the 

claims against the Division. 

But on the federal due-process claim, the district court made the 

dismissal with prejudice. Because Eleventh Amendment immunity is 

jurisdictional, this dismissal should have been without prejudice. See 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) 

(stating that Eleventh Amendment immunity is jurisdictional); Barnes v. 

United States, 776 F.3d 1134, 1151 (10th Cir. 2015) (stating that 

jurisdictional dismissals should ordinarily be without prejudice). 

C. Official-Capacity Claims for Damages Against Mr. Herrick 

and Mr. Whitney 

 In district court, Mr. Herrick and Mr. Whitney also invoked Eleventh 

Amendment immunity on the official-capacity claims for damages. But the 
9 

district court never ruled on the applicability of the Eleventh Amendment 

to these defendants. 

We address Eleventh Amendment immunity sua sponte with respect 

to Mr. Herrick and Mr. Whitney. See United States ex rel. Burlbaw v. 

Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (allowing the court to raise 

Eleventh Amendment immunity sua sponte). 

 Damage claims against state officers in their official capacities 

trigger Eleventh Amendment immunity. Edelman v. Jordan, 415 U.S. 651, 

676-77 (1974). This immunity exists here because the Colbys sought 

damages from two officers (Mr. Herrick and Mr. Whitney) in their official 

capacities on behalf of an arm of the state. As a result, Mr. Herrick and 

Mr. Whitney were entitled to dismissal on the official-capacity claims for 

damages. 

The district court did dismiss these claims, but did so based on the 

statute of limitations rather than the Eleventh Amendment. The difference 

is material because the district court’s rationale led to a dismissal with 

prejudice. But as noted above, Eleventh Amendment immunity is 

jurisdictional. See p. 8, above. As a result, these dismissals should have 

been without prejudice. 

 
10 

2. Statute of Limitations

 These dismissals leave the federal personal-capacity claims against 

Mr. Herrick and Mr. Whitney for damages. The district court dismissed 

these claims based on timeliness, and this determination was correct. 

A. Standard of Review 

 This determination was based on Federal Rule of Civil Procedure 

12(b)(6). In reviewing this determination, we engage in de novo review, 

crediting the well-pleaded allegations as true and viewing them in the light 

most favorable to the Colbys. See Indus. Constructors Corp. v. U.S. Bureau 

of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994) (stating that we engage 

in de novo review of a dismissal for failure to state a valid claim); Big 

Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 858 (10th Cir. 

2016) (stating that we view the well-pleaded allegations as true and 

consider them in the light most favorable to the non-moving party). 

Though we credit these allegations, we independently determine the 

applicability of the statute of limitations. Wright v. Sw. Bell Tel. Co., 925 

F.2d 1288, 1290 (10th Cir. 1991). Once we decide the applicability of the 

limitations period, we consider whether “the dates given in the complaint 

make clear that the right sued upon has been extinguished.” Aldrich v. 

McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). 

 
11 

 B. Timeliness of Suit 

 In applying this standard, we start with when the cause of action 

accrued. Accrual takes place when the wrongdoer commits an act and the 

plaintiff suffers damage. Wallace v. Kato, 549 U.S. 384, 391 (2007). 3

 Here the wrongful act consisted of seizure of the horse on July 22, 

2011, and the Colbys’ alleged damage was immediate. Thus, the cause of 

action accrued on July 22, 2011, triggering the two-year period of 

limitations on the federal claims against Mr. Herrick and Mr. Whitney. See 

Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993) (two-year period 

of limitations). But the Colbys did not sue until almost three years later. 

Thus, we would ordinarily consider these claims time-barred. 

 The Colbys seek to avoid a time-bar with two arguments: (1) The 

federal claims did not accrue until a post-deprivation remedy was denied, 

and (2) the tort was continuing. These arguments were waived and are 

invalid on the merits. 

The Colbys did not make these arguments when responding to the 

motion to dismiss. Instead, the Colbys waited to make these arguments for 

the first time when objecting to the magistrate judge’s report and 

recommendation. That was too late. See ClearOne Commc’ns, Inc. v. Biamp 

Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011) (holding that issues are 

 

3

 In § 1983 proceedings, accrual involves a matter of federal law. 

McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011). 
12 

waived when raised for the first time in objecting to a magistrate judge’s 

recommendation).4

Even if these arguments had not been waived, they would fail as a 

matter of law. The federal claims accrued when the Colbys knew or should 

have known that they would not receive a timely post-deprivation hearing. 

See Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (stating 

that a § 1983 cause of action accrues when the claimant knows or should 

have known of a constitutional violation). 

The Colbys allege in the third amended complaint that the inspector 

seized the horse and told the mother and daughter that they needed to settle 

their ownership dispute in their own private suit. Thus, the allegations in 

the third amended complaint indicate that the Colbys knew, upon seizure of 

the horse, that the State would not provide a post-deprivation hearing.5

According to the Colbys, however, the tort was not complete until the 

Division denied a post-deprivation hearing. We disagree: Due process 

would have been violated as soon as it became clear that the Division 

 

4

 The district judge observed that the Colbys had failed to include the 

“continuing tort” argument in objecting to the motion to dismiss. R. at 572 

n.4. But the district judge declined to decide the issue of waiver because 

the Colbys’ argument failed on the merits. Id. 

5

 We do not imply that a post-deprivation hearing would have been 

necessary. In addressing a similar claim against a Wyoming brand 

inspector, we held that due process was provided when state officials 

provided the owner of cattle with an opportunity to supply adequate proof 

of ownership. Stanko v. Maher, 419 F.3d 1107, 1116 (10th Cir. 2005). 
13 

would not afford a prompt post-deprivation hearing. Hudson v. Palmer, 468 

U.S. 517, 533 (1984). 

When did this become clear? The Colbys tell us in the third amended 

complaint, alleging that the inspector had said from the outset that no 

hearing would be provided and that the mother and daughter would need to 

resolve ownership through their own court action. R. at 342, 364. Thus, it 

was clear by July 22, 2011 (the date of the seizure) that the State would 

not provide a post-deprivation hearing. 

For the sake of argument, we might generously assume that the 

Colbys might have continued to anticipate a post-deprivation hearing. But 

at some point, a post-deprivation hearing would be too late to satisfy due 

process. When did the delay cross that line? The Colbys again tell us, 

arguing in district court that a post-deprivation hearing would be timely 

only if it had been made available within six weeks of the seizure. See R. 

at 517 (the Colbys’ objection to the magistrate judge’s report) 

(“Defendants had a clear duty to provide for a pre-deprivation hearing, and 

even in exigent circumstances, they are required to provide for an 

incredibly expedient, timely, post-deprivation hearing inside far less than 

six weeks.”). That six-week period would have ended on September 2, 

2011, which was still more than two years before the Colbys sued. Thus, 

the federal claims against Mr. Herrick and Mr. Whitney remain time-barred 
14 

even if the alleged constitutional violation had not materialized until the 

State failed to provide a timely post-deprivation hearing. 

 The Colbys also argue that the tort was continuing as long as the 

State continued to deny a post-deprivation hearing. We disagree. For the 

sake of argument, we can assume that the continuing violation doctrine 

applies in § 1983 cases. This doctrine is triggered by continuing unlawful 

acts but not by continued damages from the initial violation. Mata v. 

Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011). 

 The continuing violation doctrine would not apply here. The 

wrongdoing took place on a discrete date (July 22, 2011) when the horse 

was seized. The complaint does not base the claim on any acts taking place 

after July 22, 2011. Instead, the Colbys simply allege that they continued 

to suffer damages from their continued inability to enjoy their horse for a 

period of almost three years. Though damages continued, the wrongful acts 

did not. See Pike v. City of Mission, 731 F.2d 655, 660 (10th Cir. 1984) 

(“[A] plaintiff may not use the continuing violation theory to challenge 

discrete actions that occurred outside the limitations period even though 

the impact of the acts continues to be felt.”), overruled on other grounds 

by Baker v. Bd. of Regents, 991 F.2d 628, 633 (10th Cir. 1993). As a result, 

the Colbys cannot take advantage of the continued violation doctrine. 
15 

3. Conclusion

 The Eleventh Amendment applies, foreclosing suit against the 

Division. Thus, the district court was right to dismiss the claims against 

the Division. But on the federal due-process claim against the Division, the 

dismissal should have been without prejudice. 

In addition, the district court should have held that the officialcapacity claims for damages against Mr. Herrick and Mr. Whitney were 

precluded under the Eleventh Amendment. These dismissals should also 

have been without prejudice. 

 The remaining federal claims against Mr. Herrick and Mr. Whitney 

were properly dismissed based on expiration of the statute of limitations. 

The claims accrued when the inspector seized the horse, and the 

commission of a single, discrete tort did not trigger the continuing 

violation doctrine. Thus, the federal personal-capacity claims against Mr. 

Herrick and Mr. Whitney were properly dismissed. 

Based on these conclusions, we remand for the limited purpose of 

directing the district court to make the dismissals without prejudice on 

(1) the federal due-process claim against the Division and (2) the officialcapacity claims for damages against Mr. Herrick and Mr. Whitney.