Colby v Herrick

Colby appealed the dismissal of her claims arising from seizure of a horse. The panel affirmed. It held that Herrick’s employer, the Colorado Brand inspection Division is an arm of the state as Colorado law treats the Division as part of the state government and its employees are law enforcement officials; Colorado exercises control and guidance over Division through the appointment power; Division is self-funding; and Division participates in the state’s risk management fund which is funded thorough appropriations. Thus on balance Division must be treated as an arm of Colorado and the 11th Amendment bars suit against Herrick in his official capacity. Dismissal is without prejudice as it is on jurisdictional grounds.  It affirmed dismissal of claims against Herrick and his boss in their personal capacity as the statue of limitations ran from the date of seizure and suit was filed over a year after the period ran, Colby waived her arguments for later accrual and in any event they were without merit as Colby was told at the time of seizure there would not be a state proceeding to review the seizure and the continuing tort argument would only add six weeks to the period and thus suit was still untimely.