PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ SUMMER COLBY; JAMES R. COLBY, Plai ntiffs - Appellants,

v. MICHAEL HERRICK; CHRIS WHITNEY, as Commissioner of the Brand Inspection Division; BRAND INSPECTION DIVISION, De fendants - 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 argu ment would be helpful. As a result, we are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). FILED United States Court of Appeals Tenth Circuit 

### March 1, 2017 Elisabeth A. Shumaker Clerk of Court2 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 Defend ants-Appellees.

__________________ _______________ Before HOLMES , BALDOCK , and BACHARACH , Circuit Judges.

____________________ _____________ BACHARACH , Circuit Judge.

__________________ _______________ This appeal grew out of a battle over Winter, a horse that be longed 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 res ponded by se nding someone from the Brand Inspection Division to in vestigate. After investigating, the inspector seized the horse, prompting Ms. Colby and her mother to rumble in court over owne rship. 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 tw o of its officers, but the district court dismissed the action. The Colbys appeal, generati ng issues involving the Eleventh Amendment and the stat ute of limitations. The Eleventh Amendment precludes anyone from suing an arm of the state or asserting a damage claim agai nst state officers in their official capacities. The Division is an arm of the state entit led to Eleventh3 Amendment immunity. And two of the defendants (Mr. Michael Herrick and Mr. Chris Whitney) are

 employees of an ar m of the state

 being sued in their official capacities for damages. These claims are pr ecluded by the Eleventh Amendment. After dismissal of these claims, the Colbys would be left with federal claims for damages against Mr. Herric k and Mr. Whitney in their personal capacities. 1 For these claims, th e Colbys had to sue within two years of when the cause of action accrued. The federal cl aims for damages accrued when the inspector seized the horse, wh ich took place more than two years before the Colbys sued. Thus, the limita tions period expire d on the federal claims for damages against Mr. Herric k 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 in clude 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 Divisi on cannot be sued in federal court.

1 The Colbys also asse rted state-law claims, bu t they are not involved in this appeal.4 Nor can the Colbys bring claims for damages agains t 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 th is review, we restrict ourselves to the factual allegations in the complaint because the defendants have not pointed to any other evidence. See Muscogee (Creek) Nati on 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 Divisi on enjoyed Eleventh Amendment immunity. Eleventh Amendment imm unity extends to govern mental 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 character ized under Co lorado law? 2. How much guidance and control does the State of Colorado exercise over the Division? 3. How much funding does the Division recei ve from the State? 4. Does the Division enjoy the ab ility to issue bonds and levy taxes?5 5. Does the State of Colorado be ar legal liab ility to pay a judgment agains t the Division? Sturdevant v. Paulsen , 218 F.3d 1160, 1166 (10th Ci r. 2000). These factors lead us to conclude that the Division is considered an ar m 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 (C olo. 1910) (“The State Board of Stock Inspection Commi ssioners is but an auxiliary of the state government.”). The Di vision 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 Ya rd v. Patten , 892 P.2d 297, 301 (Colo. 1995); see also R. at 339, 353 (the Colbys’ allegation that the Division’s inspecto rs have limited arrest po wers in the exercise of their statutor y duties). Second, the State of Colorado exercises cons iderable guidance and control over the Division. The Division is considered a part of the state Department of Agricult ure. Colo. Rev. Stat. § 24-1-123(4)(g )(I). As a result, the Division is subject to cont rol by state officials. For example, the Division’s stock inspecti on commissioners are a ppointed and removed by the governor. Id . § 35-41-101(1); see also R. at 336 (the Colbys’ allegation6 that the governor a ppoints five board members and can remove these board members for cause). These powers support treating th e 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 si xteen board members had been appointed by the governor). The third and fourth factors, involving the am ount of funding received from the State and the author ity to issue bonds, cut both ways. The Colbys allege in the third ame nded complaint that the Division is entirely self-funded. 2 R. at 337. And the State Board of Stock Commissioners is entitled to issue bonds wo rth 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’ allegati on that the State Boar d of Stock Commissioners can issue revenue bonds up to $10 million). The se lf-funding and power to issue bonds cut against Elev enth Amendment immunity. But the Division is ent itled to participate in the Colorado risk management fund, which obtains money from state appropriations. Colo.

2 Colorado law provides that the Divi sion 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). Un der the Colorado Constitution, an “enterpr ise” is a government-owne d business that receives less than 10% of its a nnual 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). Th is use of state money supports consideration of the Divi sion 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 st ate, although 95-96.5% of the budget is self-funded, beca use the bulk of any judg ment would come from the state’s risk management fund). The final consideration is whether the State bears le gal liability to pay a judgment against the Division. The Division does not address this factor. At least some of the Division’s fees ar e placed with the state treasurer. Colo. Rev. Stat. § 35-55-115 . But we lack enough information to conclusively decide whet her the State of Colorado’s Treasury would be legally obligate d to satisfy a judgment against the Division. For the sake of argument, we may as sume 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 Divisi on 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 uncl ear how the entity satisfies money judgments, reasoning that th e entity’s board members served as members of th e state’s board of education).8 * * * The first and second fact ors support characteriza tion as an arm of the state, and the third and fourth factors cut both wa ys. Even if the fifth factor favors the Colbys, the balance of factors would lead us to regard the Division as an ar m of the state. See Colorado v. United States , 219 F.2d 474, 477 (10th Cir. 1954) (s tating that Colorado c onducts its inspections through the State Board of Stock Inspection Commissi oners in Co lorado’s “sovereign capacity as a state”). This status triggers the Eleventh Amendment, insulating the Division fro m suit in federal c ourt. Because the Eleventh Amendment applies, the dist rict court was right to dismiss the claims against the Division. But on the federal due- process claim, the district court made the dismissal with prejudic e. Because Eleventh Amendment immunity is jurisdictional, this dismissal shou ld have been without prejudice. See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100 (1984) (stating that Eleventh Amendmen t immunity is jurisdictional); Barnes v. United States , 776 F.3d 1134, 1151 (10th Cir. 2015) (stating that jurisdictional dismissa ls should ordinarily be without prejudice). C. Official-Capacity Claims fo r Damages Against Mr. Herrick and Mr. Whitney In district court, Mr. Herrick a nd Mr. Whitney also invoked El eventh Amendment immunity on the official-cap acity claims for damages. But the9 district court never ruled on the appl icability of the El eventh 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 imm unity sua sponte). Damage claims against state offi cers in their official capacities trigger Eleventh Amendment immunity. Edelman v. Jordan , 415 U.S. 651, 676-77 (1974). This immu nity exists here beca use 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 en titled to dismissal on the of ficial-capacity claims for damages. The district court did dismiss thes e claims, but did so based on the statute of limitations rath er than the Eleventh Amendment. The difference is material because the district cour t’s rationale led to a dismissal with prejudice. But as noted above, El eventh Amendmen t immunity is jurisdictional. See p. 8, above. As a result, th ese dismissals should have been without prejudice.10 2. Statute of Limitations These dismissals leav e the federal personal-c apacity claims against Mr. Herrick and Mr. Whitney for dama ges. The district court dismissed these claims based on timeliness, and this determination was correct. A. Standard of Review This determination wa s based on Federal Rule of Civil Procedure 12(b)(6). In re viewing this determination, we engage in de novo review, crediting the well-pleaded a llegations as true and vi ewing 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) (sta ting that we engage in de novo review of a dismissal for failure to state a valid claim); Big Cats of Serenity Spri ngs, Inc. v. Rhodes , 843 F.3d 853, 858 (10th Cir. 2016) (stating that we vi ew the well-pleaded alle gations as true and consider them in the light most favorable to the non-moving party). Though we credit these a llegations, we indepe ndently dete rmine the applicability of the statute of limitations . Wright v. Sw. Bell Tel. Co. , 925 F.2d 1288, 1290 (10th Cir. 1991 ). Once we decide th e applicabili ty of the limitations period, we consider whether “the dates given in the complaint make clear that the right sued upon has been ex tinguished.” 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 st art with when the cause of action accrued. Accrual takes place when th e 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 hor se on July 22, 2011, and the Colbys’ alle ged damage was immediat e. Thus, the cause of action accrued on July 22, 2011, triggering the two-year period of limitations on the federal claims ag ainst Mr. Herrick and Mr. Whitney. See Blake v. Dickason , 997 F.2d 749, 750-51 (10th Ci r. 1993) (two-year period of limitations). But the Colbys did no t sue until almost three years later. Thus, we would ordinarily cons ider these claims time-barred. The Colbys seek to avoid a time -bar with two arguments: (1) The federal claims did not a ccrue until a post-depriva tion remedy was denied, and (2) the tort was continuing. Th ese arguments were waived and are invalid on the merits. The Colbys did not ma ke these arguments wh en responding to the motion to dismiss. Instea d, the Colbys waited to make these arguments for the first time when ob jecting to the magistra te 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) (holdi ng that issues are

3 In § 1983 proceedings, accrual involves a matt er of federal law. McCarty v. Gilchrist , 646 F.3d 1281, 1289 (10th Cir. 2011).12 waived when raised for the first time in objectin g 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 accr ued when the Colbys knew or should have known that they woul d not receive a timely post -deprivation hearing. See Smith v. City of Enid , 149 F.3d 1151, 1154 (10t h Cir. 1998) (stating that a § 1983 cause of action accrues when the cl aimant knows or should have known of a constit utional violation). The Colbys allege in the third am ended complaint that the inspector seized the horse and told the mother an d daughter that they needed to settle their ownership dispute in their own pr ivate suit. Thus, the allegations in the third amended complaint indicate th at the Colbys knew, upon seizure of the horse, that the Stat e would not provide a pos t-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 th at the Division

4 The district judge ob served 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 ca ttle with an opport unity to s upply 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 Co lbys 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 seizur e) that the State would not provide a post-deprivation hearing. For the sake of argument, we mi ght generously assume that the Colbys might have conti nued to anticipate a post-deprivation hearing. But at some point, a post-depr ivation hearing would be too late to satisfy due process. When did the delay cross th at 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-dep rivation hearing in side 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-barred14 even if the alleged constitutional vi olation had not materialized until the State failed to prov ide 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 th at the continuing violation doctrine applies in § 1983 cases. This doctrine is triggered by c ontinuing unlawful acts but not by continued damage s 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 da te (July 22, 2011) when th e 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 thei r continued inability to enjoy their horse for a period of almost three years. Though damages cont inued, 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 conti nuing violation theo ry to challenge discrete actions that o ccurred outside the limitatio ns 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 Ci r. 1993). As a result, the Colbys cannot take advantage of the continued violation doctrine.15 3. Conclusion The Eleventh Amendment applie s, foreclosing suit against the Division. Thus, the district court was right to dismiss th e claims against the Division. But on the federal due-process clai m against the Division, the dismissal should have be en without prejudice. In addition, the district court shou ld have held that the officialcapacity claims for damages against Mr. Herrick and Mr. Whitney were precluded under the Eleventh Amendmen t. These dismissa ls should also have been without prejudice. The remaining federal claims ag ainst Mr. Herrick and Mr. Whitney were properly dismissed ba sed 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 conclusi ons, we remand for th e limited purpose of directing the district court to make the dismissals wit hout prejudice on (1) the federal due-proce ss claim against the Divisi on and (2) the officialcapacity claims for damages agains t Mr. Herrick and Mr. Whitney.