Tiscareno v. Anderson

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 26, 2011
Elisabeth A. Shumaker
Clerk of Court
ABBY TISCARENO; and GUILLERMO
TISCARENO,
Plaintiffs–Appellees,
v. No. 09-4238
RICHARD ANDERSON, in his
individual capacity and official capacity,
Defendant–Appellant,
LORI FRASIER; MARION WALKER;
and WILLIAM BEERMAN, in their
individual capacities; and
INTERMOUNTAIN HEALTH CARE,
INC., in its individual capacity,
Defendants.
ORDER GRANTING PANEL REHEARING IN PART
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.
Abby and Guillermo Tiscareno seek panel rehearing on both their federal and state
claims against Richard Anderson. With respect to the Tiscarenos’ state claim, we
GRANT rehearing by the panel. Section IV of the panel’s March 21, 2011, opinion is
VACATED and replaced with the order issued herewith. We DENY panel rehearing on
all other issues raised in the Tiscarenos’ petition for rehearing.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 26, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ABBY TISCARENO; and GUILLERMO
TISCARENO,
Plaintiffs–Appellees,
v.
RICHARD ANDERSON, in his
individual capacity and official capacity,
No. 09-4238
Defendant–Appellant, (D.C. No. 2:07-CV-00336-CW-DN)
(D. Utah)
LORI FRASIER; MARION WALKER;
and WILLIAM BEERMAN, in their
individual capacities; and
INTERMOUNTAIN HEALTH CARE,
INC., in its individual capacity,
Defendants.
ORDER AND JUDGMENT*
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In light of the Utah Supreme Court’s decision in Jensen v. Cunningham, 2011 UT
17, No. 20090277 (Mar. 29, 2011), we vacated our earlier judgment as it pertained to
Abby and Guillermo Tiscareno’s claim under the Utah Constitution. We now affirm the
district court’s denial of Richard Anderson’s motion to dismiss the state law claim for
lack of notice.
I
The facts and procedural background of this case are summarized in our earlier
opinion. See Tiscareno v. Anderson, 2011 WL 971338, *1-2 (10th Cir. Mar. 21, 2011).
Shortly after our opinion was filed, the Utah Supreme Court decided Jensen. 2011 UT
17. That case held without qualification or reservation that “the Utah Governmental
Immunity Act does not apply to claims alleging state constitutional violations.” Id. at
¶ 51. We decline Anderson’s invitation to read this statement as limited to the facts in
Jensen. Instead, we conclude that the Utah Supreme Court meant precisely what it said,
and determine that the Tiscarenos’ state law claim, alleging a violation of the Utah
Constitution, is not barred by her failure to file a notice of claim.
II
Accordingly, we AFFIRM the district court’s denial of Anderson’s motion to
dismiss the Tiscarenos’ state claim for lack of notice. We REMAND the matter to the
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district court for proceedings consistent with our earlier opinion and this order.1
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
We note that it is within the district court’s discretion to continue to exercise
jurisdiction in this pendant state matter, or the district court may dismiss the claim
without prejudice. See United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d
1207, 1220 (10th Cir. 2000).
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