                                                                 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




                                             -2-
                                                                                 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




                                              -2-
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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