Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 26, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JAMES RALPH DAWSON, JR.,
Plaintiff - Appellant,
v. No. 21-1307 (D.C. No. 1:16-CV-00489-CMA-NYW) JEFF ARCHAMBEAU, the CEO of (D. Colo.) Colorado Health Partners; RICK RAEMISCH, Executive Director of the Colorado Department of Corrections; SUSAN TIONA, Chief Medical Officer of the Colorado Department of Corrections; R. FRICKEY,
Defendants - Appellees,
and
C. IRELAND, FCF Health Providers; T. SICOTTE,
Defendants. _________________________________
ORDER AND JUDGMENT * _________________________________
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 2
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. _________________________________
Mr. James Dawson is a state inmate afflicted with Hepatitis C.
Complaining of the treatment for his hepatitis, he sued four individuals
(Robert Frickey, Jeff Archambeau, Susan Tiona, and Rick Raemisch) for
deliberate indifference to serious medical needs. In the suit, the district
court issued two orders. The first one granted summary judgment to Mr.
Archambeau, Dr. Tiona, and Mr. Raemisch; the second order granted
summary judgment to Mr. Frickey. These grants of summary judgment led
Mr. Dawson to appeal.
This appeal creates two issues:
1. What is the scope of our appellate jurisdiction?
2. Did Mr. Dawson fail to exhaust available administrative remedies?
On the first question, we conclude that our jurisdiction is confined to
the grant of summary judgment to Mr. Frickey. In the notice of appeal, the
appellant must designate the orders being appealed. Mr. Dawson complied,
designating the order as to Mr. Frickey but not the order as to the three
other defendants. We thus lack appellate jurisdiction over the issues
involving Mr. Archambeau, Dr. Tiona, and Mr. Raemisch.
On the second question, we conclude that Mr. Dawson failed to
exhaust available administrative remedies. Federal law requires exhaustion
of available administrative remedies. Prison Litigation Reform Act,
2 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 3
42 U.S.C. § 1997e(a). Such remedies were available to Mr. Dawson
through the state prison’s grievance system. Mr. Dawson used this system
to file grievances, but they didn’t address anything that Mr. Frickey had
done or not done. Given the failure to file a grievance about Mr. Frickey’s
conduct, the district court correctly granted summary judgment to him.
1. We lack appellate jurisdiction over the appellate arguments involving defendants Archambeau, Raemisch, and Tiona.
In civil cases, an appellant must a file notice of appeal within 30
days. Fed. R. App. P. 4(a)(1)(A). In the notice of appeal, the appellant
must designate the order being appealed; and this designation limits our
jurisdiction. See Fed. R. App. P. 3(c)(1)(B) (requiring designation of the
order); Foote v. Spiegal, 118 F.3d 1416, 1422 (10th Cir. 1997) (limiting
our jurisdiction).
Mr. Dawson seeks to appeal two summary-judgment orders. He filed
a notice of appeal after the second order, but not after the first order. In
this notice of appeal, Mr. Dawson designated the award of summary
judgment to Mr. Frickey. Left unmentioned was the prior award of
summary judgment to the other defendants. So the notice of appeal didn’t
trigger appellate jurisdiction as to defendants Archambeau, Raemisch, and
Tiona.
3 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 4
Mr. Dawson argues that a docketing statement can supplement the
notice of appeal. For the sake of argument, we can assume that Mr. Dawson
is right. Even so, he never filed a docketing statement.
When appellants file briefs within the deadline for the notices of
appeal, those briefs can supplement the designation of orders being
appealed. Smith v. Barry, 502 U.S. 244, 248–49 (1992). But Mr. Dawson
didn’t file any briefs within the deadline for his notice of appeal.
Because Mr. Dawson didn’t timely file a notice of appeal for the
award of summary judgment to defendants Archambeau, Raemisch, and
Tiona, we lack jurisdiction to review the summary-judgment rulings in
their favor.
2. Mr. Dawson failed to exhaust administrative remedies as to Mr. Frickey’s conduct.
For the ruling as to Mr. Frickey, however, we do have jurisdiction.
On the merits, the parties disagree on exhaustion of available
administrative remedies, so we must decide
whether Mr. Frickey waived his exhaustion argument by omitting it in his first summary-judgment motion and
whether Mr. Dawson exhausted available administrative remedies.
A. Mr. Frickey did not waive his exhaustion argument for summary judgment.
Mr. Frickey had earlier moved for summary judgment but didn’t
argue nonexhaustion. The district court granted the motion, but we
4 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 5
reversed and remanded the case. On remand, Mr. Frickey moved again for
summary judgment. This time, he argued nonexhaustion as a ground for
summary judgment. Mr. Dawson contends that Mr. Frickey waived his
nonexhaustion argument by failing to include it in his first motion for
summary judgment.
We reject this contention. In answering the complaint, Mr. Frickey
raised nonexhaustion as a defense. He didn’t waive the defense by failing
to include it in his first summary-judgment motion. See Villante v.
VanDyke, 93 F. App’x 307, 308–09 (2d Cir. 2004) (unpublished)
(concluding that the defendants hadn’t waived their exhaustion defense by
omitting it in their first motion for summary judgment); Drippe v.
Gototweski, 434 F. App’x 79, 81 (3d Cir. 2011) (unpublished) (concluding
that the defendant did not waive his exhaustion defense “by failing to raise
it in a timely motion for summary judgment”); see also Gray v. Sorrels,
818 F. App’x 787, 791 (10th Cir. 2020) (unpublished) (concluding that the
defendants didn’t waive exhaustion by omitting it in their motion to
dismiss). 1
Mr.
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Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 26, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JAMES RALPH DAWSON, JR.,
Plaintiff - Appellant,
v. No. 21-1307 (D.C. No. 1:16-CV-00489-CMA-NYW) JEFF ARCHAMBEAU, the CEO of (D. Colo.) Colorado Health Partners; RICK RAEMISCH, Executive Director of the Colorado Department of Corrections; SUSAN TIONA, Chief Medical Officer of the Colorado Department of Corrections; R. FRICKEY,
Defendants - Appellees,
and
C. IRELAND, FCF Health Providers; T. SICOTTE,
Defendants. _________________________________
ORDER AND JUDGMENT * _________________________________
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 2
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. _________________________________
Mr. James Dawson is a state inmate afflicted with Hepatitis C.
Complaining of the treatment for his hepatitis, he sued four individuals
(Robert Frickey, Jeff Archambeau, Susan Tiona, and Rick Raemisch) for
deliberate indifference to serious medical needs. In the suit, the district
court issued two orders. The first one granted summary judgment to Mr.
Archambeau, Dr. Tiona, and Mr. Raemisch; the second order granted
summary judgment to Mr. Frickey. These grants of summary judgment led
Mr. Dawson to appeal.
This appeal creates two issues:
1. What is the scope of our appellate jurisdiction?
2. Did Mr. Dawson fail to exhaust available administrative remedies?
On the first question, we conclude that our jurisdiction is confined to
the grant of summary judgment to Mr. Frickey. In the notice of appeal, the
appellant must designate the orders being appealed. Mr. Dawson complied,
designating the order as to Mr. Frickey but not the order as to the three
other defendants. We thus lack appellate jurisdiction over the issues
involving Mr. Archambeau, Dr. Tiona, and Mr. Raemisch.
On the second question, we conclude that Mr. Dawson failed to
exhaust available administrative remedies. Federal law requires exhaustion
of available administrative remedies. Prison Litigation Reform Act,
2 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 3
42 U.S.C. § 1997e(a). Such remedies were available to Mr. Dawson
through the state prison’s grievance system. Mr. Dawson used this system
to file grievances, but they didn’t address anything that Mr. Frickey had
done or not done. Given the failure to file a grievance about Mr. Frickey’s
conduct, the district court correctly granted summary judgment to him.
1. We lack appellate jurisdiction over the appellate arguments involving defendants Archambeau, Raemisch, and Tiona.
In civil cases, an appellant must a file notice of appeal within 30
days. Fed. R. App. P. 4(a)(1)(A). In the notice of appeal, the appellant
must designate the order being appealed; and this designation limits our
jurisdiction. See Fed. R. App. P. 3(c)(1)(B) (requiring designation of the
order); Foote v. Spiegal, 118 F.3d 1416, 1422 (10th Cir. 1997) (limiting
our jurisdiction).
Mr. Dawson seeks to appeal two summary-judgment orders. He filed
a notice of appeal after the second order, but not after the first order. In
this notice of appeal, Mr. Dawson designated the award of summary
judgment to Mr. Frickey. Left unmentioned was the prior award of
summary judgment to the other defendants. So the notice of appeal didn’t
trigger appellate jurisdiction as to defendants Archambeau, Raemisch, and
Tiona.
3 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 4
Mr. Dawson argues that a docketing statement can supplement the
notice of appeal. For the sake of argument, we can assume that Mr. Dawson
is right. Even so, he never filed a docketing statement.
When appellants file briefs within the deadline for the notices of
appeal, those briefs can supplement the designation of orders being
appealed. Smith v. Barry, 502 U.S. 244, 248–49 (1992). But Mr. Dawson
didn’t file any briefs within the deadline for his notice of appeal.
Because Mr. Dawson didn’t timely file a notice of appeal for the
award of summary judgment to defendants Archambeau, Raemisch, and
Tiona, we lack jurisdiction to review the summary-judgment rulings in
their favor.
2. Mr. Dawson failed to exhaust administrative remedies as to Mr. Frickey’s conduct.
For the ruling as to Mr. Frickey, however, we do have jurisdiction.
On the merits, the parties disagree on exhaustion of available
administrative remedies, so we must decide
whether Mr. Frickey waived his exhaustion argument by omitting it in his first summary-judgment motion and
whether Mr. Dawson exhausted available administrative remedies.
A. Mr. Frickey did not waive his exhaustion argument for summary judgment.
Mr. Frickey had earlier moved for summary judgment but didn’t
argue nonexhaustion. The district court granted the motion, but we
4 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 5
reversed and remanded the case. On remand, Mr. Frickey moved again for
summary judgment. This time, he argued nonexhaustion as a ground for
summary judgment. Mr. Dawson contends that Mr. Frickey waived his
nonexhaustion argument by failing to include it in his first motion for
summary judgment.
We reject this contention. In answering the complaint, Mr. Frickey
raised nonexhaustion as a defense. He didn’t waive the defense by failing
to include it in his first summary-judgment motion. See Villante v.
VanDyke, 93 F. App’x 307, 308–09 (2d Cir. 2004) (unpublished)
(concluding that the defendants hadn’t waived their exhaustion defense by
omitting it in their first motion for summary judgment); Drippe v.
Gototweski, 434 F. App’x 79, 81 (3d Cir. 2011) (unpublished) (concluding
that the defendant did not waive his exhaustion defense “by failing to raise
it in a timely motion for summary judgment”); see also Gray v. Sorrels,
818 F. App’x 787, 791 (10th Cir. 2020) (unpublished) (concluding that the
defendants didn’t waive exhaustion by omitting it in their motion to
dismiss). 1
Mr. Dawson argues that our reversal of the first summary judgment
order barred subsequent consideration of exhaustion. For this argument, he
1 These unpublished opinions are persuasive but not precedential. See 10th Cir. R. 32.1(A); United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). 5 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 6
relies on the law-of-the-case doctrine. This doctrine provides that when we
decide an issue, that decision governs in a later appeal. Capps v. Sullivan,
13 F.3d 350, 353 (10th Cir. 1993). But we didn’t address exhaustion in the
earlier appeal, either expressly or implicitly, so the law-of-the-case
doctrine doesn’t apply. See Anthony v. Baker, 955 F.3d 1395, 1397 n.1
(10th Cir. 1992) (“The law of the case doctrine ‘encompasses a court’s
explicit decisions, as well as those decided by necessary implication.’”
(quoting Williamsburg Wax Museum v. Historic Figures, Inc., 810 F.2d 243
(D.C. Cir. 1987))), abrogated in part on other grounds, Handy v. City of
Sheridan, 636 F. App’x 728, 742 (10th Cir. 2016) (unpublished).
B. Mr. Dawson failed to exhaust available administrative remedies.
On the merits, Mr. Dawson denies the availability of an
administrative remedy for past harm. Granted, exhaustion was necessary
only if Mr. Dawson had an available administrative remedy. See Porter v.
Nussle, 534 U.S. 516, 524 (2002). But the administrative process did
supply Mr. Dawson with potential remedies. For example, prison
authorities could have granted prospective relief, like ordering prompt
medical attention. Because remedies were available to Mr. Dawson, he had
to exhaust the administrative process. See Woodford v. Ngo, 548 U.S. 81,
85 (2006) (“[A] prisoner must now exhaust administrative remedies even
where the relief sought—monetary damages—cannot be granted by the
6 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 7
administrative process.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002) (“Even where the ‘available’ remedies would appear to be
futile at providing the kind of remedy sought, the prisoner must exhaust
the administrative remedies available.”)
The remaining question is whether Mr. Dawson exhausted the
administrative process for his claims against Mr. Frickey. Mr. Dawson did
file three grievances. To determine whether these grievances sufficed, we
consider whether they had supplied prison officials with enough
information to address the substance of Mr. Dawson’s eventual court action
against Mr. Frickey. See Kikumura v. Osagie, 461 F.3d 1269, 1285
(10th Cir. 2006), overruled on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), as explained in Robbins v. Okla., 519 F.3d
1242, 1246–47 (10th Cir. 2008).
Mr. Dawson denies any obligation to name each defendant in his
grievances. We can assume that he’s right. But prison authorities still
needed at least some information about what Mr. Frickey had allegedly
done wrong. See CDOC Admin. Reg. 850-04(IV)(C) (“A grievance is a
written complaint by an offender filed on their own behalf regarding a
policy, condition, or an incident pertaining to the offender’s
confinement.”); see also Kikumura, 461 F.3d at 1285 (discussing the
necessary content of a grievance).
7 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 8
In the complaint, Mr. Dawson alleged that Mr. Frickey had
disregarded pain complaints at a medical appointment. But the first
grievance had preceded the appointment with Mr. Frickey. So that
grievance couldn’t alert anyone to Mr. Dawson’s dissatisfaction with Mr.
Frickey’s conduct. In the second grievance, Mr. Dawson had complained
about the failure to include his blood tests in his medical records. But this
grievance didn’t bear on Mr. Dawson’s allegations about Mr. Frickey. In
the third grievance, Mr. Dawson had complained of his inability to get a
new treatment being given to other inmates. Again, the grievance hadn’t
mentioned anything that Mr. Frickey did or didn’t do.
Considered separately or together, the three grievances didn’t alert
authorities to any dissatisfaction with Mr. Frickey’s conduct. So Mr.
Frickey was entitled to summary judgment on his exhaustion defense.
* * *
We lack jurisdiction to address the award of summary judgment to
defendants Archambeau, Raemisch, and Tiona. But we do have jurisdiction
to consider the award of summary judgment to Mr. Frickey. In our view,
the district court didn’t err in granting summary judgment to Mr. Frickey.
8 Appellate Case: 21-1307 Document: 010110730276 Date Filed: 08/26/2022 Page: 9
He couldn’t incur liability because Mr. Dawson hadn’t exhausted available
administrative remedies.
Entered for the Court
Robert E. Bacharach Circuit Judge