* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 10/28/96 FOR THE TENTH CIRCUIT

Dr. ALAN R. RICE,

Plaintiff-Appellant,

v. JUDITH E. N. ALBINO, President, University of Colorado; THE BOARD OF REGENTS OF THE UNIVERSITY OF COLORADO; Dr. MARTIN MALTEMPO, individually and in hisofficial capacity as Head of the Department of Geography, Geology andPhysics; Dr. CLYDE ZAIDINS, individually and in his official capacity asHead of the Tenure Committee, Department of Geography, Geology and Physics; Dr. WILLIAM SIMMONS,individually, Assistant Professor, Department of Geography, Geology and Physics, Defendants-Appellees. No. 95-1460 (D.C. No. 95-B-1137) (D. Colo.)

ORDER AND JUDGMENT *-2-

Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Alan R. Rice appeals the district court’s dismissal of his complaint against defendants, the Board of Regents of the Uni versity of Colorado and several university professors and officials, as barred by the applicable statutes of limitations. Plaintiff served as a nontenured assistant professo r at the University of Colorado from 1983 until 1990 pursuant to annually renewed contracts. In May 1989 he received a letter from the university stati ng that his employment would be terminated at the end of the 1989-90 academic year. Plaintiff filed a grievance within the university system protesting his treatme nt and the decision not to grant him tenure. He left the employ of the university i n May 1990. He did not serve the notice of suit required by Colo. Rev. Stat. § 2 4-10-109 for claims against the state or its officers until November 14, 1994. He filed this lawsuit on May 12,
1995.-3-

The district court construed plaintiff’s complaint as setting forth tort and contract claims against defendants. The complaint referenced federal constitutional claims without any elaboration, and plaintif f first raised a constitutional due process claim in connection with a motion for r econsideration filed after the district court’s judgment. The correctness of the district court’s dismissal on statute of limitations grounds is the only issue be fore us. The parties agree that the statute of limitations applicable to plaintiff’s breach of contract claim is either two years, see Colo. Rev. Stat. § 13-80102(1)(h) (action against public or governmental entity or it s employees), or three years, see Colo. Rev. Stat. § 13-80-101(1)(a) (action on contr act). The two-year statute of limitations also applies to any claim plaintiff mayhave under the federal constitution. See Blake v. Dickason , 997 F.2d 749, 750 (10th Cir. 1993). As to the to rt claim, the parties recognize that plaintiff was req uired to give notice of his intent to sue the university and its employees within 180 days “after the date of the discovery of the injury,” pursuant to Colo. Rev. St at. § 24-10-109(1). Thus, the district court correctly dismissed the complaint un less plaintiff can show that his alleged causes of action did not accrue until a tim e within the applicable statutes of limitations. Plaintiff attempts to establish a late accrual date by maintaining that he was required to exhaust his administrative remedies within the university before filing-4-

suit. He asserts that the university delayed proce ssing his grievance and failed to promptly respond to his attorney’s letters of inqui ry. He contends that his claim only accrued when an unequivocal letter dated May 3 1, 1994, denying that any further review would be conducted, was sent to his attorney. Thus plaintiff argues the appropriate starting point for the runni ng of the various statutes of limitations was May 31, 1994; therefore his notice and lawsuit were timely filed. We have examined the record on appeal, which appare ntly consists of everything available to the district court. We agr ee with the district court’s dismissal, that the statutes of limitations had exp ired on any possible cause of action plaintiff may have had before he filed his c omplaint. We see no basis in the record to warrant equitable tolling of the statutes of limitations. Further, no administrative exhaustion requirement exists as a c ondition precedent to a suit based on a federal constitutional claim. Patsy v. Board of Regents , 457 U.S. 496, 516 (1982). Insofar as plaintiff claims a breach of his employm ent contract, his cause of action accrued on the date he was notified he wouldnot be retained, and certainly no later than his last day of work in May 1990, app roximately five years before his suit was filed. See Colo. Rev. Stat. § 13-80-108(6) (cause of action o r breach of contract “shall be considered to accrue on the d ate the breach is discovered or should have been discovered by the exercise of reas onable diligence”).-5-

Any tort claims plaintiff may have had against defe ndants in their individual capacities, as distinguished from their officia l capacities, were also barred. Plaintiff’s grievance filed in April 1990 details v arious complaints plaintiff had about individual defendants and an alleged conspira cy against plaintiff. This action demonstrates his knowledge more than five ye ars before the complaint was filed. Colo. Rev. Stat. § 13-80-102 (general tort statute of limitations is two years). Insofar as plaintiff’s complaint sounds in contractor tort based on the grievance proceedings--as a state cause of action o r a federal constitutional tort for denial of procedural due process--plaintiff kne w or should have known of the violation more than three years before he filed his action. His attorney’s letter of April 13, 1992, addressed to the chair of the Privi lege and Tenure Committee at the University of Colorado, states that it is “quit e clear that the panel [of the Privilege and Tenure Committee] failed in its respo nsibilities and did not comply with Faculty Handbook requirements”; that “the find ings, conclusions and recommendations of the Senate Committee on privileg e and tenure were never properly forwarded for an adequate review by the Pr esident.” Appellant’s App. doc. 24, ex. 7. Assuming the faculty handbook can be read, as plaintiff contends, to provide rights to this nontenured and terminatedfaculty member, plaintiff’s counsel’s letter demonstrates knowledge that those alleged rights had been-6-

violated. See Baker v. Board of Regents , 991 F.2d 628, 632 (10th Cir. 1993) (“A civil rights action accrues when the plaintiff know s or has reason to know of the injury which is the basis of his action.”). The notice period for purposes of tort claims underthe Colorado Governmental Immunity Act is triggered “when a claimant h as only discovered that he or she has been wrongfully injured,” Trinity Broadcast ing of Denver, Inc. v. City of Westminster , 848 P.2d 916, 923 (Colo. 1993), and after a reaso nable opportunity to discover the facts underlying his or her claim, State v. Young , 665 P.2d 108, 111 (Colo. 1983). The statute, however, does not “ allow an aggrieved party to wait to file its action until all of the elements o f the claim mature.” Id. Although we are satisfied that plaintiff knew of the alleged wrong much earlier, the letter dated July 13, 1993, from the university counsel to plaintiff’s attorney explicitly informed counsel that “the University’s internal pr ocedures for review have been concluded in this matter.” Appellant’s App. doc. 2 4, ex. 10 at 2. The notice to the attorney general required by Colo. Rev. Stat. § 24-10-109 was not filed within 180 days after receipt of that letter. Plaintiff c annot enlarge the period for filing a claim by a continuing barrage of argumentative pl eas for relief beseeching the university to agree with his interpretation of the laws and regulations governing his grievances.
AFFIRMED.-7- Entered for the Court James K. Logan Circuit Judge