                                                                          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      This order and judgment is not binding precedent, except under the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.

                                           2
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).




                                          3
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

                                           4
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


                                               5
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


                                                6
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




                                             7
