Buck v. Utah Labor Commission , 73 F. App'x 345 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 12 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STAN K. BUCK,
Plaintiff-Appellant,
v. No. 02-4205
(D.C. No. 1:02-CV-87-DB)
UTAH LABOR COMMISSION; (D. Utah)
LDS WELFARE SERVICES;
INDUSTRIAL COMMISSION
OF UTAH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Stan K. Buck, proceeding pro se, appeals the judgment of the
district court dismissing his claims against two defendants. Plaintiff’s claims
stem from an industrial accident and involve the response of his employer,
defendant L.D.S. Welfare Services, to that accident, the eventual termination of
his employment, his filing of charges with the second defendant, Utah Labor
Commission, and the Commission’s alleged lack of response to those charges.
The district court dismissed the claims against the Commission on the basis of its
Eleventh Amendment immunity. In a separate order it dismissed the claims
against Welfare, holding that those claims were barred by all applicable statutes
of limitation and were also barred by claim preclusion. R. docs. 23, 26. Our
jurisdiction arises from 28 U.S.C. § 1291. We affirm.
Claims Against Utah Labor Commission
Shortly after the district court in this case determined that the Commission
was entitled to Eleventh Amendment immunity, this court, in a related appeal also
brought by plaintiff against the Commission, similarly concluded that the
Eleventh Amendment shields the Commission from claims alleging violations of
42 U.S.C. § 1983, and the Americans with Disabilities Act (ADA). Buck v. Indus.
Comm’n, Nos. 01-4224 & 01-4261, 2002 WL 31516609, 51 Fed. Appx. 832(10th Cir. Nov. 13, 2002). In that appeal, as in this one, plaintiff did not dispute
the district court’s finding that the Commission is an arm of the State of Utah.
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Therefore, we accept this underlying factual finding for purposes of this appeal.
Cf. Hein v. TechAmerica Group, Inc., 17 F.3d 1278, 1279 (10th Cir. 1994)
(accepting district court’s findings as undisputed because not expressly appealed).
In this case, in addition to § 1983 claims and claims under the ADA,
plaintiff has added claims against the Commission under 42 U.S.C. § 1985, the
Utah Constitution, the Utah Administrative Procedures Act, and the federal
Administrative Procedures Act, as well as state law claims of conspiracy to deny
his statutory and civil rights. R. doc. 1, at 1-2; 7-12. We review de novo the
district court’s order dismissing plaintiff’s claims against the Commission based
on the Eleventh Amendment. Joseph A. ex rel. Wolfe v. Ingram , 275 F.3d 1253,
1259 (10th Cir. 2002). We agree with the district court that these claims, like
those brought in the earlier suit, are barred by the Commission’s Eleventh
Amendment sovereign immunity. See Ellis v. Univ. of Kan. Med. Ctr. , 163 F.3d
1186, 1196 (10th Cir. 1998) (holding that Congress did not abrogate the states’
Eleventh Amendment immunity when it enacted 42 U.S.C. § 1985); Johns v.
Stewart , 57 F.3d 1544, 1554 (10th Cir. 1995) (holding that, under Utah’s
Governmental Immunity Act, state courts have exclusive jurisdiction over suits
brought against the State).
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Claims Against L.D.S. Welfare Services
Plaintiff was employed by L.D.S. Welfare Services (Welfare) until April
1995. R. doc. 5, Ex. 3 at 9. Prior to the termination of his employment, he had
been involved in an industrial accident. Id. at 4. Plaintiff’s complaint against
Welfare alleged, inter alia , that defendant violated its employment policies,
wrongfully terminated him, discriminated and retaliated against him, failed to
provide a reasonable accommodation after his injury, and conspired with the
Labor Commission to deprive him of a timely investigation and hearing and to
deny him his substantive rights. As with his claims against the Labor
Commission, plaintiff asserts violations of 42 U.S.C. § 1983 and § 1985, the
ADA, the Utah and federal Administrative Procedure Acts, and the Utah
Constitution, as well as state law claims of conspiracy to deny his statutory and
civil rights. R. doc. 1, at 7-12. The district court dismissed plaintiff’s claims
against Welfare on two grounds, as time barred and as barred by claim preclusion.
R. doc. 26, at 10. We agree that under any applicable statute of limitations,
plaintiff’s claims were brought too late. Our resolution of this matter makes it
unnecessary for us to address the claim-preclusion issue.
The district court correctly determined that Utah’s four-year statute of
limitations for general personal injury actions applies to plaintiff’s § 1983 and
§ 1985 claims. See Owens v. Okure , 488 U.S. 235, 236 (1989). Further, because
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the Utah Constitution does not specify any express limitation period, the four-year
residual statutory limit controls his state constitutional claim as well. See Utah
Code Ann. § 78-12-25(3); see also Quick Safe-T Hitch, Inc. v. RSB Systems L.C. ,
12 P.3d 577, 579 (Utah 2000). Plaintiff’s ADA claim had to be brought within
ninety days of receipt by him of the February 1998 right-to-sue letter. See
42 U.S.C. § 2000e-5(f)(1) and 42 U.S.C. § 12117(a) (expressly adopting Title VII
filing deadline for ADA claims). Under the Utah Administrative Procedures Act,
parties have thirty days after a decision is issued in which to bring suit. Utah
Code Ann. § 63-46b-14(3). As for plaintiff’s claim under the federal
Administrative Procedures Act, he raises no argument on appeal regarding the
applicable limitations period.
“[A] cause of action accrues and the relevant statute of limitations begins
to run upon the happening of the last event necessary to complete the cause of
action . . . .” O’Neal v. Div. of Family Servs. , 821 P.2d 1139, 1143 (Utah 1991)
(internal quotation marks omitted). Plaintiff’s employment was terminated in
April 1995. R. doc. 5, Ex. 3 at 9. The EEOC dismissed the industrial-accident
charges and issued its right-to-sue letter on February 19, 1998, R. doc. 7, Ex. 1.
In April 1998 plaintiff filed his first action in the federal district court against the
Industrial Commission (later renamed the “Utah Labor Commission”), see
http://pacer.utd.uscourts.gov, case no. 98cv58, alleging essentially the same facts
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which form the basis of the claims he brings against Welfare, see Buck , 2002 WL
31516609, at **1. Plaintiff, however, did not file this suit until July 17, 2002,
R. doc. 1, at i, more than four years later. As discussed above, none of the
relevant statutes of limitation would allow plaintiff to bring these claims more
than four years after their accrual.
Plaintiff points to no claim that accrued less than four years before he filed
this suit. The closest he comes in that regard is to contend that the statute of
limitations on his conspiracy claim should have begun to run from the date of a
letter sent by an attorney for defendant Labor Commission to defendant Welfare,
as that was the “last event necessary” to establish the alleged conspiracy.
Plaintiff’s Brief at 3. This argument is unavailing for plaintiff’s cause, however,
because that letter was dated April 27, 1998, id. at Ex. E, giving plaintiff until
April 27, 2002, in which to file suit. As noted above, this action was not
commenced until July 17, 2002. Even if plaintiff is correct about the accrual date
of his conspiracy claim, the claim is time-barred.
Plaintiff argues that Utah’s discovery exception to the general law
regarding statutes of limitations should apply to his case. Under that theory,
“the limitations period does not begin to run until the discovery of facts forming
the basis for the cause of action.” O’Neal , 821 P.2d at 1143 (internal quotation
marks omitted). For the discovery rule to come into play, however, a plaintiff
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must show that he was ignorant of the factual basis for his claim. Id. at 1144.
If a plaintiff was “aware, or should have been aware, of the facts upon which a
claim could be brought,” the discovery rule is inapplicable. Id.
Plaintiff cannot make this threshold showing. He has failed to point to any
factual basis for invoking the discovery rule in this case. In particular, with
respect to the conspiracy claims, in a letter to the Utah state court in August 1997
plaintiff stated that “it appears that there may have been collusion” between
defendants. R. doc. 5, Ex. 3 at 1. Thus, plaintiff then had enough knowledge to
raise such claims.
Other than application of the discovery rule, plaintiff does not advance any
other bases in his brief upon which the statutes of limitation could be tolled, nor
does he assign as error the district court’s conclusion that no such tolling was
appropriate.
Plaintiff’s motion to amend the district court record is DENIED.
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
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