                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 16 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MADISON STEWART WILKINS,

                Plaintiff-Appellant,

    v.                                                   No. 00-1259
                                                     (D.C. No. 98-D-1867)
    COLORADO DEPARTMENT OF                                 (D. Colo.)
    SOCIAL SERVICES DIVISION OF
    VOCATIONAL REHABILITATION,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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.
      Pro se plaintiff Madison Stewart Wilkins appeals from the district court’s

dismissal of her complaint alleging negligence claims against defendant arising

from an incident that occurred on March 14, 1979. The district court liberally

construed her complaint as alleging violations of 42 U.S.C. § 1983, and based

its ruling on 1) the statute of limitations applicable to such actions under

Colo. Rev. Stat. § 13-80-102(1), 2) defendant’s Eleventh Amendment immunity

from suit, and 3) plaintiff’s failure to assert her claims against a person acting

under the color of state law. The district court also noted that, to the extent

plaintiff’s claims could be considered to have a common law basis, they

would be barred by the Colorado Governmental Immunity Act, Colo. Rev. Stat.

§ 24-10-106. Plaintiff’s post-judgment motions were denied.     1



      On appeal, plaintiff appears to contend that she was allowed to file her

claims in state court in 1995, that the district court erred in dismissing her case

after granting her leave to proceed without prepayment of costs or fees and in

failing to hold a scheduled motions hearing, and that her underlying negligence

claims have merit entitling plaintiff to her day in court. She requests oral

argument and contends that her claims are protected by both Title VII and the



1
      The district court denied plaintiff’s motion to proceed on appeal without
prepayment of costs or fees, and plaintiff has reurged that motion on appeal.
Upon consideration, we grant plaintiff’s motion to proceed in forma pauperis
under 28 U.S.C. § 1915(a).

                                          -2-
Americans with Disabilities Act (ADA). Finally, she appears to assert that the

Eleventh Amendment and § 1983 are not applicable to her claims because they

were adopted after 1979.

      We must affirm the district court’s dismissal of plaintiff’s claims in light of

the lapse of over nineteen years between the incident of which she complains and

the initial filing of her case in district court. Applicable statutes of limitations

require that litigants file their claims within a certain time period. These statutes

      are designed to promote justice by preventing surprises through the
      revival of claims that have been allowed to slumber until evidence
      has been lost, memories have faded, and witnesses have disappeared.
      The theory is that even if one has a just claim it is unjust not to put
      the adversary on notice to defend within the period of limitation and
      that the right to be free of stale claims in time comes to prevail over
      the right to prosecute them.

Order of R.R. Telegraphers v. Ry. Express Agency, Inc.     , 321 U.S. 342, 348-49,

(1944).

      In her reply brief, plaintiff argues for the first time that she is protected

by Title VII and the ADA. We generally do not address new theories on appeal.

Walker v. Mather (In re Walker)   , 959 F.2d 894, 896 (10th Cir. 1992).

Nonetheless, under any theory, plaintiff’s claims are barred by the two-year

statute of limitation found in Colo. Rev. Stat. § 13-80-102, applicable to

negligence claims arising in Colorado, including claims under § 1983.       See

Crumpton v. Perryman , 956 P.2d 670, 672 (Colo. Ct. App. 1998).


                                           -3-
       Plaintiff’s assertions that the state courts allowed her to file her negligence

claims in 1995 and her complaints about the district court’s failure to hold

a scheduled motions hearing cannot overcome the effect of the applicable statute

of limitations. “Statutes of limitations do not bar the filing of claims, but rather

establish time limitations within which specified claims may be filed. Such

statutes are designed to promote justice, discourage unnecessary delay and

forestall the prosecution of stale claims.”     Estate of Stevenson v. Hollywood

Bar & Café, Inc. , 832 P.2d 718, 721 (Colo. 1992). As a matter of law, plaintiff’s

claims are barred by the statute of limitations.

       Finally, contrary to plaintiff’s assertions, it is clear that both the Eleventh

Amendment and § 1983 predate plaintiff’s claims.        See Hans v. Louisiana ,

134 U.S. 1 (1890) (nineteenth century case discussing the Eleventh Amendment);

Quern v. Jordan , 440 U.S. 332, 342 (1979) (discussing the enactment of § 1983

as part of the Civil Rights Act of 1871).

       The judgment of the United States District Court for the District

of Colorado is AFFIRMED. All pending motions are DENIED.


                                                        Entered for the Court



                                                        David M. Ebel
                                                        Circuit Judge


                                              -4-
