FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 7, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court THE ESTATE OF JAMES ROEMER,
Plaintiff - Appellant,
v. No. 17-1418 (D.C. No. 1:14-CV-01655-PAB-NYM) DAVID JOHNSON, in his individual (D. Colo.) capacity; NATHAN ALGIEN, in his individual capacity; THOMAS BOYER, in his individual capacity; CHASE FELZEIN, in his individual capacity; ALI SHOAGA, in his individual capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, McKAY, and MORITZ, Circuit Judges. _________________________________
This appeal arises from the June 13, 2012 murder of James Roemer at the
hands of his cellmate, Paul Farley.
Just shy of the two-year anniversary of Roemer’s death, his estate (the Estate)
brought suit against several prison officials (the defendants) under 42 U.S.C. § 1983,
alleging that they violated Roemer’s Eighth Amendment rights by displaying
* This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. deliberate indifference to the substantial risk of serious harm that Farley posed to
Roemer’s safety. The defendants then moved for summary judgment, arguing that the
Estate’s claims against them were time-barred under the applicable two-year statute
of limitations. Specifically, the defendants asserted that the Estate’s claims accrued
approximately ten days before Roemer’s death—i.e., on or about June 3, 2012—and
that the statute of limitations therefore expired approximately nine days before the
Estate filed its June 12, 2014 complaint.
The district court agreed and granted summary judgment to the defendants.
But in doing so, the district court erred: in determining when the Estate’s claims
against the defendants accrued, it evaluated those claims collectively, rather than
individually. Instead, the district court should have separately analyzed when the
Estate’s claim against each individual defendant accrued. See Vasquez v. Davis, 882
F.3d 1270, 1276 (10th Cir. 2018).
In light of this error, the only remaining question before us is whether the
defendants have shown that under the individualized approach our cases demand, the
Estate’s claims against each of the defendants accrued more than two years before the
Estate brought its claims. With one exception, we hold that the defendants fail to
make this showing. Accordingly, we affirm in part, reverse in part, and remand for
further proceedings.1
1 In doing so, we need not and do not decide when the Estate’s claims accrued. We hold only that, with one exception, the defendants fail to demonstrate those claims accrued more than two years before the Estate filed suit against them. See Robert L. Kroenlein Tr. ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1274 (10th Cir. 2 Background
Farley murdered Roemer while the two men were incarcerated together at the
Sterling Correctional Facility (SCF) in Sterling, Colorado.2 Farley came to SCF by
way of Arizona, where he spent several years in the custody of the Arizona
Department of Corrections (ADOC).
In advance of Farley’s transfer, ADOC Case Manager Herb Haley sent a letter
to the Colorado Department of Corrections (CDOC) detailing Farley’s “extensive
disciplinary history.” App. vol. 5, 1316. Thus, CDOC was aware of that history when
Farley came into its custody in July 2011. In particular, Haley’s letter relayed that
Farley (1) sexually assaulted a previous cellmate with a lethal weapon; (2) helped an
inmate in another cell commit suicide by strangling that inmate “with a braided
[bedsheet] that was passed through the cell vents”; (3) admitted to attempting to
secure placement in protective segregation so he could kill another inmate housed
there; (4) used force to escape custody during transport; and (5) made statements
such as, “I just want to do somebody,” and “I want to put steel in someone.” App.
vol. 2, 467.
2014) (“The statute of limitations is an affirmative defense, so the defendant, as the moving party, bears the burden of demonstrating that there is no material fact in dispute on the issue of whether the statute of limitations bars the claim.” (citations omitted)). 2 We take the bulk of these historical facts from the district court’s orders granting summary judgment. We view those facts in the light most favorable to the Estate as the nonmoving party. See Knopf v. Williams, 884 F.3d 939, 946 (10th Cir. 2018). We also resolve all factual disputes and draw all reasonable inferences in its favor. See id. 3 Notably, Haley’s letter acknowledged the possibility that Farley made these
last statements in an effort “to ensure a single cell.” Id. But given Farley’s violent
history, Haley concluded that Farley “clearly [constituted] a threat to[] other
inmates”—a conclusion that found additional support in other documents that ADOC
submitted to CDOC in anticipation of Farley’s transfer. Id. For instance, ADOC
provided CDOC with a disciplinary report describing an incident in which Farley
sliced a cellmate’s back open with “what appeared to be a razor blade.” App. vol. 3,
647.
After receiving this information, CDOC scheduled a hearing to determine
whether it should house Farley in administrative segregation or instead place him
with the general prison population. The notice for that placement hearing expressly
acknowledged both Farley’s “extensive” history of violent behavior and the “threat”
that Farley “pose[d] . . . to the safety and security of . . . other offenders.” App. vol.
2, 477.
Case Manager Ali Shoaga chaired the three-person committee that conducted
the placement hearing. Prior to the hearing, Shoaga reviewed the materials provided
by ADOC, including Haley’s letter. And Shoaga later admitted that he “was aware”
at the time of the hearing that Farley “posed more than a low risk.” App. vol. 5, 1318.
Nevertheless, on September 1, 2011, Shoaga recommended placing Farley with the
general prison population rather than in administrative segregation. David Johnson,
an associate warden with the Denver Reception and Diagnostic Center, approved
4 Shoaga’s recommendation the next day. And Offender Services Classification Officer
Nathan Algien then reviewed the ADOC materials and assigned Farley to SCF.
On September 22, 2011, CDOC transferred Farley to SCF and placed him in
general population, where he “was required to have a cellmate.” Id. at 1319.
Approximately nine months later, Corrections Officer Thomas Boyer and Housing
Lieutenant Chase Felzein approved a request from Farley and Roemer in which the
two men asked to share a cell. At that point, the Estate alleges, Roemer was “serving
a two-year sentence for trespassing and was due to be released within months.” Aplt.
Br. 2.
As the Estate would later discover, CDOC had in place a policy that governed
requests for such “convenience moves.” App. vol. 2, 336. Generally speaking, that
policy warned against housing “aggressive” offenders with “at risk” offenders. Id.
For instance, the policy stated that prison officials should not “allow an inmate doing
a short sentence [to] live with an inmate doing a long sentence.” Id. Similarly, it
warned against housing “[o]ffenders [who] exhibit Sexual Aggressive Behaviors
(SAB)” with “offenders identified as Sexual Vulnerability at Risk (SVR).” Id.
Despite these warnings, and despite the fact that both Boyer and Felzein were
allegedly aware of Farley’s history, Boyer and Felzein assigned Roemer and Farley
to share a cell. Shortly thereafter, Roemer began to fear that Farley posed a threat to
his safety. In particular, the district court found that “[b]y March 25, 2012, [Roemer]
believed that [Farley] was a murderer and [had] expressed concerns about his safety”
to his mental-health provider. App. vol. 5, 1328. The district court also found that,
5 “[s]hortly thereafter, [Farley] aggressively pinned [Roemer] against the wall of his
cell and asked, ‘Don’t you know what I could do to you?’” Id. at 1328–29 (quoting
App. vol. 3, 771). Subsequently, on or about June 3, 2012, Roemer informed Boyer
of his safety concerns and requested a cell reassignment. Boyer immediately denied
Roemer’s request. Approximately ten days later, on June 13, 2012, Farley strangled
Roemer to death in the cell that the two men shared.
Almost two years after Roemer’s murder, the Estate filed its initial complaint
naming 17 defendants, including Felzein, Boyer, and Shoaga.3 It did not name
Johnson or Algien. In relevant part, the Estate’s June 12, 2014 complaint alleged that
Felzein, Boyer, and Shoaga violated the Eighth Amendment by displaying deliberate
indifference to the substantial risk of serious harm that Farley posed to Roemer’s
safety.
Felzein, Boyer, and Shoaga moved to dismiss, arguing that the complaint
failed to state a claim and that they were entitled to qualified immunity. The district
court denied the motion as to Shoaga. But it granted the motion to dismiss as to
Felzein and Boyer. Notably, in doing so, the district court explained that to
adequately plead its Eighth Amendment claims, the Estate was “required to allege
that each defendant personally participated in the alleged constitutional violation and
that each defendant acted or failed to act in spite of subjective awareness of a
substantial risk of serious harm.” App. vol. 1, 141 (emphases added). And the court
3 Of the claims the Estate identified in its initial complaint, only the claims against Felzein, Boyer, and Shoaga are at issue in this appeal. 6 then chastised the Estate for failing to “identify[] specific allegations supporting [the
Estate’s] claim against each individual defendant.” Id. (emphasis added).
After the district court dismissed the claims against Felzein and Boyer, the
Estate proceeded to conduct discovery regarding its remaining claim against Shoaga.
Based on the information it obtained during the course of that discovery, the Estate
then moved to file an amended complaint that (1) asserted new Eighth Amendment
claims against Johnson and Algien and (2) repleaded the Estate’s Eighth Amendment
claims against Felzein and Boyer. The district court granted the Estate’s motion for
leave to amend, and the Estate filed its amended complaint on April 7, 2017.
In the meantime, Shoaga moved for summary judgment. As relevant here, he
argued that the Estate’s claim against him was barred by the applicable two-year
statute of limitations. Specifically, Shoaga asserted that the Estate’s claim accrued as
soon as Roemer knew or should have known that his Eighth Amendment rights were
violated. And Shoaga further alleged that Roemer had this information on or about
June 3, 2012—the date upon which (1) Roemer informed Boyer of his safety
concerns and requested a cell reassignment and (2) Boyer denied that request. Thus,
Shoaga maintained, the Estate’s June 12, 2014 complaint came nine days too late.
The district court agreed and granted summary judgment to Shoaga. Johnson,
Algien, Felzein, and Boyer then moved for summary judgment, incorporating by
reference Shoaga’s statute-of-limitations argument. The Estate opposed their motion
for summary judgment and also asked the district court to reconsider its earlier order
granting summary judgment to Shoaga.
7 The district court denied the Estate’s motion to reconsider. And it
determined—after applying the same analysis it applied to the Estate’s claim against
Shoaga—that the Estate’s claims against the remaining defendants were likewise
time-barred. Thus, the district court granted the remaining defendants’ motion for
summary judgment and entered judgment in favor of all five defendants. The Estate
appeals.
Analysis
The Estate argues that the district court erred in treating its claims as time-
barred and in granting summary judgment to the defendants on that basis. In support,
the Estate advances three arguments. First, it asserts that the district court erred in
failing to separately analyze when the Estate’s claims against each individual
defendant accrued. Second, the Estate argues that under such an individualized
approach, the defendants failed to demonstrate that the Estate’s claims against each
of the individual defendants accrued more than two years before the Estate filed suit
against them. Third, the Estate argues that even assuming it filed suit more than two
years after its claims accrued, it is nevertheless entitled to equitable tolling. We
review the Estate’s first two arguments de novo. See Nelson v. State Farm Mut. Auto.
Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005); McKnight v. Kimberly Clark Corp.,
149 F.3d 1125, 1128 (10th Cir. 1998). To the extent we reach the Estate’s third
argument, we review only for abuse of discretion. See Chance v. Zinke, 898 F.3d
1025, 1034 (10th Cir. 2018).
8 I. The Test for Accrual
In granting the defendants’ motions for summary judgment, the district court
first determined that the Estate’s Eighth Amendment claim against one of the
defendants accrued more than two years before the Estate filed suit. And it then
reasoned that the Estate’s Eighth Amendment claims against all of the defendants
therefore did so as well. But according to the Estate, our recent decision in Vasquez
v. Davis, 882 F.3d 1270 (10th Cir. 2018), expressly forecloses such a collective
approach to the accrual analysis. Instead, the Estate asserts, Vasquez requires an
individualized assessment of each of the Estate’s claims against each of the separate
defendants. See 882 F.3d at 1276 (holding that plaintiff’s Eighth Amendment claims
“accrued . . . separately for each of the[] [d]efendants”). For the reasons discussed
below, we agree with the Estate.
In Vasquez—which we decided after the district court entered judgment in this
case but before the parties filed their opening briefs—the plaintiff alleged that five
CDOC medical providers (Jeanne Davis, Brian Webster, Kathleen Melloh, Gatbel
Chamjock, and Maurice Fauvel) violated his Eighth Amendment rights by displaying
deliberate indifference to his serious medical needs. See 882 F.3d at 1272–74. The
district court granted summary judgment to Davis, Webster, Melloh, and Chamjock,
concluding that because the plaintiff brought suit more than two years after his
claims against them accrued, those claims were untimely under the applicable two-
year statute of limitations. And the district court granted summary judgment to
Fauvel as well, ruling that the plaintiff failed to show Fauvel acted with deliberate
9 indifference. We affirmed in both respects. Id. at 1272. Critically, in affirming the
district court’s statute-of-limitations ruling, we mapped out the analytical path a court
must follow in determining when claims like the ones at issue here accrue. See id. at
1275–76.
We began by citing the general principle that a plaintiff’s claims accrue once
he or she can “file[] suit and obtain[] relief.” Id. at 1276; see also Wallace v. Kato,
549 U.S. 384, 388 (2007) (explaining that plaintiff’s claim accrues “when the
plaintiff has ‘a complete and present cause of action’” (quoting Bay Area Laundry &
Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997))).4
Notably, a plaintiff doesn’t have a complete cause of action unless and until he or she
“knows or has reason to know of the injury” that forms the basis of that action. Baker
v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). And as Vasquez recognizes, for
purposes of a § 1983 claim, the relevant “injury” is the alleged constitutional
violation. Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154 (10th
Cir. 1998); see also Vasquez, 882 F.3d at 1276. Thus, a § 1983 claim accrues “when
the plaintiff knows or should know that his or her constitutional rights have been
violated.” Smith, 149 F.3d at 1154 (quoting Lawshe v. Simpson, 16 F.3d 1475, 1478
4 At oral argument, the defendants asserted—without support—that the date upon which a § 1983 claim accrues is different from the date upon which a plaintiff can adequately plead that claim. We disagree. Although it may “theoretically [be] possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute.” Bay Area Laundry, 522 U.S. at 201 (quoting Reiter v. Cooper, 507 U.S. 258, 267 (1993)). 10 (7th Cir. 1994)); see also id. (explaining that to determine when § 1983 claim
accrues, court must first “identify the constitutional violation and locate it in time”
(quoting Lawshe, 16 F.3d at 1478)).
We next explained in Vasquez that a plaintiff who brings a constitutional claim
under § 1983 can’t obtain relief without first satisfying the personal-participation
requirement. That is, the plaintiff must demonstrate the defendant “personally
participated in the alleged constitutional violation” at issue.5 882 F.3d at 1275.
Indeed, because § 1983 is a “vehicle[] for imposing personal liability on government
officials, we have stressed the need for careful attention to particulars, especially in
5 A plaintiff’s failure to satisfy this requirement will trigger swift and certain dismissal. See, e.g., Welch v. Saunders, 720 F. App’x 476, 479 (10th Cir. 2017) (unpublished) (citing personal-participation requirement and affirming order dismissing plaintiffs’ § 1983 claims because their complaint failed to include sufficient “particulars”); Lewis v. Clark, 663 F. App’x 697, 703 (10th Cir. 2016) (unpublished) (“The district court ruled that [plaintiff’s] complaint fails to state any individual-capacity claim against [defendant] . . . because [plaintiff] didn’t allege any personal participation by [defendant] in any of the alleged constitutional violations . . . . We discern no error in the district court’s analysis . . . .”); Sherman v. Klenke, 653 F. App’x 580, 590–91 (10th Cir. 2016) (unpublished) (“The district court properly dismissed [plaintiff’s] Eighth Amendment claim against [defendant] because the complaint fails to sufficiently allege [defendant’s] personal participation in the alleged constitutional violation.”). In fact, we have gone so far as to suggest that failure to satisfy the personal-participation requirement will not only justify dismissal for failure to state a claim; it will render the plaintiff’s claim frivolous. See, e.g., Esnault v. Suthers, 24 F. App’x 854, 855–56 (10th Cir. 2001) (unpublished) (affirming district court’s order dismissing complaint as frivolous where “complaint fail[ed] to demonstrate sufficient facts showing how each individual defendant participated in the alleged violation of [plaintiff’s] constitutional rights”; noting that personal-participation showing “is essential to a § 1983 action”). That is, we have indicated that such allegations don’t even give rise to an “arguable,” albeit ultimately “unsuccessful,” claim; instead, such a claim is “so defective that [it] should never have been brought at the outset.” Neitzke v. Williams, 490 U.S. 319, 328–29 (1989). 11 lawsuits involving multiple defendants.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th
Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)
(explaining that when plaintiff brings § 1983 claims against multiple defendants, “it
is particularly important . . . that the complaint make clear exactly who is alleged to
have done what to whom”); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532–33
(10th Cir. 1998)) (holding that district court’s analysis of plaintiff’s § 1983 claims
was “infirm” where district court “lump[ed]” together plaintiff’s claims against
multiple defendants—“despite the fact that each of the defendants had different
powers and duties and took different actions with respect to [plaintiff]”—and “wholly
failed to identify specific actions taken by particular defendants that could form the
basis of [a constitutional] claim”).
We then pointed out in Vasquez that an Eighth Amendment deliberate-
indifference claim has both an objective and a subjective component. 882 F.3d at
1275; see also Farmer v. Brennan, 511 U.S. 825, 833–34, 837 (1994) (explaining
that prison officials violate prisoner’s Eighth Amendment right to be free “from
violence at the hands of other prisoners” when (1) inmate is “incarcerated under
conditions posing a substantial risk of serious harm” from another inmate or inmates
and (2) those prison officials are deliberately indifferent to relevant risk—that is,
they “know[] of and disregard[] an excessive risk to inmate health or safety”).
Next, we combined the personal-participation requirement with the deliberate-
indifference test and concluded that, in order “[t]o recover as to a particular
[d]efendant,” the plaintiff in Vasquez would ultimately be required “to prove as to
12 that [d]efendant both an objective and a subjective element of his claim.” 882 F.3d at
1275 (emphases added). And we reasoned that “[t]o prove the subjective element of
his claim,” the plaintiff therefore “had to show for each . . . [d]efendant that such
[d]efendant” was aware of and disregarded a substantial risk of serious harm. Id.
(emphases added).
Finally, we combined (1) the general test for accrual, (2) the personal-
participation requirement, and (3) the elements of a deliberate-indifference claim to
formulate the applicable framework for determining when the plaintiff’s claims in
Vasquez accrued. Specifically, we said:
In light of the objective and subjective elements of [the plaintiff’s] Eighth Amendment claims, those claims accrued when he “knew or had reason to know[,]” separately for each of these [d]efendants—Davis, Webster, Chamjock[,] and Melloh—to be liable, that they had acted with deliberate indifference to a known risk to [the plaintiff’s] medical needs . . . .
Id. (second alteration in original) (emphasis added) (citation omitted) (quoting Mata
v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011)).
Perhaps even more important than what we said in Vasquez, though, is what
we didn’t say—or rather, what we didn’t do. We did not (as the district court did
here) simply determine the earliest date upon which the plaintiff could have brought
his Eighth Amendment claim against any defendant and then conclude that the
plaintiff’s Eighth Amendment claims against all of the defendants necessarily
accrued on that same date. This much is clear from our analysis of the plaintiff’s
claim against Fauvel, the fifth and final medical provider at issue in Vasquez.
13 In Vasquez, the plaintiff brought suit against all five medical providers
(including Fauvel) in May 2014. See 882 F.3d at 1275. We concluded that the
plaintiff’s deliberate-indifference claims against the other four medical providers
accrued no later than February 2012. Id. at 1276. Thus, if the date upon which a
plaintiff’s deliberate-indifference claim accrues against any one defendant is the date
upon which that plaintiff’s deliberate-indifference claims accrue against all
defendants (as the district court here suggested), then we would have concluded that
the plaintiff’s claim against Fauvel was also time-barred. That is, we would have
concluded that the claim against Fauvel likewise accrued no later than February
2012, thus rendering the plaintiff’s May 2014 complaint untimely as to Fauvel.
But we didn’t take this approach. On the contrary, we explained that the
plaintiff’s claim against Fauvel was “different.” Id. at 1277. In particular, we pointed
out that “almost all of Fauvel’s interactions with [the plaintiff] occurred within the
two-year period immediately preceding his filing this suit.” Id. Thus, we concluded,
“Fauvel’s deliberate indifference as part of these interactions would support a timely
claim against him.” Id. (emphasis added). And in doing so, we necessarily recognized
that when a plaintiff brings § 1983 claims against multiple defendants, the analysis
for determining when the plaintiff’s claims accrued as to each of those defendants is
an individualized one. Thus, the Estate alleges, the district court erred in failing to
perform that individualized assessment here.
The defendants lodge two objections to the Estate’s reading of Vasquez. First,
they assert that to the extent we “made reference to determining a date of accrual
14 ‘separately’” for each defendant in Vasquez, we did so only because Davis, Webster,
Melloh, and Fauvel “were represented by [one] attorney,” while Chamjock “was
represented by” another. Aplee. Br. 35 (quoting Vasquez, 882 F.3d at 1276).
According to the defendants, these two different attorneys “asserted different dates of
accrual” in their briefing below, thus explaining why we didn’t apply a single accrual
analysis to all of the plaintiff’s claims in Vasquez. Id.
But the defendants fail to identify any textual support for this novel
interpretation of Vasquez, and we see none. In particular, our analysis in Vasquez
makes no mention of the defendants’ different attorneys. Nor does it reference their
allegedly disparate theories regarding when the claims against their respective clients
accrued. What’s more, we generally discussed Davis, Webster, Melloh, and
Chamjock together and then separately addressed Fauvel—despite the fact that it was
Chamjock, rather than Fauvel, who was represented by a different attorney. See
Vasquez, 882 F.3d at 1272, 1275–79. We therefore reject the defendants’ argument
that this procedural irregularity drove the result in Vasquez.
Alternatively, the defendants assert that even assuming Vasquez supports the
Estate’s position, our decision in Vasquez could not and did not “overturn” our earlier
decisions in Alexander v. Oklahoma, 382 F.3d 1206 (10th Cir. 2004), and Baker, 991
F.2d 628. Aplee. Br. 34; see also United States v. Burns, 800 F.3d 1258, 1261 n.6
(10th Cir. 2015) (“[A] panel of this court cannot overrule a prior panel’s
decision . . . .”). But neither Alexander nor Baker addresses (1) the personal-
participation requirement or (2) the subjective component of an individual-liability
15 deliberate-indifference claim, let alone explains how these considerations impact the
accrual analysis when a plaintiff asserts that multiple defendants were deliberately
indifferent in different ways and on different dates. Our decision in Vasquez, on the
other hand, does. Thus, Vasquez controls our analysis. See Webster v. Fall, 266 U.S.
507, 511 (1925) (“Questions [that] merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.”); Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d
1073, 1084 (10th Cir. 2011) (“It is elementary that an opinion is not binding
precedent on an issue it did not address.”).
In short, Vasquez unequivocally and expressly holds that when a plaintiff
brings deliberate-indifference claims against multiple defendants in a § 1983 action,
those claims may accrue “separately for each of th[o]se [d]efendants,” depending on
when the plaintiff knew or had reason to know that each of those defendants acted
with deliberate indifference, i.e., that each of those defendants knew of and
disregarded a substantial risk of serious harm. Id.
This holding is entirely consistent with the earlier binding authority we cite
above. See Wallace, 549 U.S. at 388; Farmer, 511 U.S. at 834, 837; Pahls, 718 F.3d
at 1225; Robbins, 519 F.3d at 1250; Tonkovich, 159 F.3d at 532–33; Smith, 149 F.3d
at 1154. What’s more, it’s consistent with the Third Circuit’s recent decision Mullin
v. Balicki, 875 F.3d 140 (3d Cir. 2017)—a case with facts that are remarkably similar
to those before us here.
16 In Mullin, the Third Circuit indicated that when a plaintiff alleges multiple
defendants violated the plaintiff’s Eighth Amendment rights by acting with deliberate
indifference on different dates and in different ways, the plaintiff’s claims against
each of those various defendants may well accrue on different dates, depending on
when the plaintiff knew or should have known “of the elements comprising [each]
separate injury.” 875 F.3d at 158–60. More specifically, the Third Circuit noted that
the plaintiff’s claims against the defendants named in her initial complaint “stemmed
from a different [and earlier] asserted injury” than the plaintiff’s claim against a
different defendant whom she named in her subsequent proposed amended complaint.
And because the plaintiff “could not have learned of the particular nature of this
[later constitutional violation]—or who was at fault—until” less than two years
before she attempted to amend her complaint, the Third Circuit held that her “attempt
to amend therefore fell well within the applicable two-year limitations period.” Id. at
159.
Notably, that is precisely the scenario before us in this appeal. That is, the
Estate doesn’t allege that all of the defendants were deliberately indifferent when, on
the same date, they all participated in the decision to house Farley with the general
prison population, rather than in administrative segregation. Nor does the Estate
allege that all of the defendants were deliberately indifferent when, on the same date,
they all participated in assigning Roemer and Farley to the same cell. Instead, the
Estate alleges that (1) Shoaga was deliberately indifferent when, on September 1,
2011, he recommended housing Farley with the general prison population;
17 (2) Johnson was deliberately indifferent when, on September 2, 2011, he ratified
Shoaga’s placement recommendation; (3) Algien was subsequently deliberately
indifferent in assigning Farley to SCF; (4) Felzein was deliberately indifferent when,
approximately nine months after Farley arrived at SCF, Felzein agreed to allow
Farley and Roemer to share a cell; and (5) Boyer was deliberately indifferent in both
agreeing to allow Farley and Roemer to share a cell and in subsequently denying
Roemer’s request for a cell reassignment on or about June 3, 2012.
Under these circumstances, the district court was required to separately
analyze when the Estate’s claims against each of these defendants accrued. See
Vasquez, 882 F.3d at 1276 (holding that, “[i]n light of the objective and subjective
elements of [plaintiff’s] Eighth Amendment claims, those claims accrued when he
‘knew or had reason to know[,]’ separately for each of the[] [d]efendants . . . , that
they had acted with deliberate indifference to a known risk to [plaintiff’s] medical
needs” (third alteration in original) (citation omitted)); Mullin, 875 F.3d at 158–60;
cf. Tonkovich, 159 F.3d at 532 (holding that district court’s analysis of plaintiff’s
constitutional claims was “infirm because it lump[ed] all of [the defendants] together
despite the fact that each of the defendants had different powers and duties and took
different actions with respect to [plaintiff]”).
But the district court failed to do so. Instead, it reasoned that the Estate’s
claims all accrued on or about June 3, 2012—i.e., the date upon which (1) Roemer
informed Boyer of his safety concerns and requested a cell reassignment and
(2) Boyer denied that request. By then, the district court deduced, Roemer “knew that
18 [Farley] posed an objectively serious risk to [Roemer’s] safety.” App. vol. 5, 1329.
And “Roemer also knew or had reason to know that prison officials disregarded the
risk to his safety because [Boyer] immediately denied [Roemer’s] request to be
moved out of the cell.” Id. (emphasis added).
In applying this collective approach to the accrual analysis, rather than the
individualized assessment our cases require, the district court erred. Thus, we must
next determine whether, under the appropriately individualized inquiry set forth
above, the defendants have demonstrated that the Estate’s claims against them
accrued more than two years before the Estate filed those claims. See Colo. Rev. Stat.
§ 13-80-102 (setting forth applicable statute of limitations); Robert L. Kroenlein Tr.,
764 F.3d at 1274 (explaining that defendant bears burden of demonstrating that
statute of limitations bars plaintiff’s claims).
II. Applying Vasquez’s Individualized Approach
Notably, the defendants make no effort to establish that, under the
individualized approach we outline above, the Estate’s claims against Shoaga,
Johnson, Algien, or Felzein accrued more than two years before the Estate brought
suit against them. Instead, the defendants merely double down on their initial
assertion that the Estate’s claims against these four defendants accrued when Roemer
knew or should have known that Boyer knew of and disregarded the substantial risk
of harm that Farley posed. For the reasons discussed above, we reject this argument.
And because we see no indication that Shoaga, Johnson, Algien, or Felzein are
entitled to summary judgment under the individualized accrual analysis our caselaw
19 requires, we reverse the district court’s orders granting summary judgment to Shoaga,
Johnson, Algien, and Felzein.
That leaves only the district court’s order granting summary judgment to
Boyer. In asking us to reverse that order as well, the Estate cites CDOC’s policy
governing convenience moves, argues that Boyer violated this policy by allowing
Roemer and Farley to live together, and notes that this policy only surfaced “[d]uring
the course of discovery conducted in this matter.” Aplt. Br. 6. Further, the Estate
points out, the district court initially dismissed its claim against Boyer for failure to
state a claim. And according to the Estate, it wasn’t until the Estate identified
CDOC’s policy that the district court “permitted [its] claim against Boyer to
proceed.” Id. at 26. Thus, the Estate maintains, its claim against Boyer necessarily
didn’t accrue until the policy was or should have been discovered. See Wallace, 549
U.S. at 388 (holding that claim accrues “when the plaintiff has ‘a complete and
present cause of action,’”—i.e., “when ‘the plaintiff can file suit and obtain relief’”
(quoting Bay Area Laundry, 522 U.S. at 201)).
But the Estate’s argument mischaracterizes the basis for the district court’s
initial ruling dismissing the Estate’s claim against Boyer. In dismissing that claim,
the district court noted the Estate failed to allege that when Roemer asked Boyer for a
cell reassignment, Roemer “provided [Boyer] with a reason for his request.” App.
vol. 1, 132. Thus, the district court dismissed the Estate’s claim against Boyer not
because the Estate failed to allege facts showing that Boyer violated CDOC policy in
allowing Roemer and Farley to share a cell, but because the Estate failed to allege
20 that Boyer was subjectively aware, when he later denied Roemer’s reassignment
request, that Farley posed a substantial risk of serious harm to Roemer’s safety. See
Farmer, 511 U.S. at 829 (holding that prison official cannot be deliberately
indifferent to substantial risk of serious harm unless that “official was subjectively
aware of the risk”). Later, however, the Estate alleged that Roemer informed Boyer
“he could not live with [Farley] due to safety concerns.” App. vol. 3, 765 (emphasis
added). And regardless of whether the district court relied on this new allegation in
subsequently allowing the Estate to replead its claim against Boyer, this allegation is
sufficient to establish that on or about June 3, 2012, Roemer knew or should have
known that Boyer knew of and disregarded the substantial risk of serious harm that
Farley posed to Roemer’s safety. Accordingly, Roemer’s claim against Boyer
accrued on or about that date.
Nevertheless, that doesn’t automatically entitle Boyer to summary judgment
on statute-of-limitations grounds. Instead, according to the Estate, the doctrine of
equitable tolling operates to render timely its claim against Boyer. See Morrison v.
Goff, 91 P.3d 1050, 1053 (Colo. 2004) (“Courts apply the doctrine of equitable
tolling to suspend a statute of limitations period when ‘flexibility is required to
accomplish the goals of justice.’ For example, we have tolled the statute of
limitations when plaintiffs did not timely file their claims because of ‘extraordinary
circumstances’ or because defendants’ wrongful conduct prevented them from doing
so.” (citation omitted) (quoting Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d
21 1094, 1096–97 (Colo. 1996))). We therefore turn next to the Estate’s equitable-
tolling argument.
III. Equitable Tolling
In its third and final argument, the Estate asserts that “[Roemer] and [the]
Estate are entitled to tolling during the period that would have been available to
Roemer, had he not been murdered, to pursue his administrative remedies.” Aplt. Br.
28 (citing Roberts v. Barreras, 109 F. App’x 224, 226 (10th Cir. 2004) (unpublished)
(“Every circuit to address the issue has held that the filing of a mandatory
administrative grievance tolls the statute of limitations for § 1983 . . . claims.”)).
But in advancing this argument, the Estate fails to “cite the precise reference[]
in the record where the [argument] was raised and ruled on” below. 10th Cir. R.
28.1(A). Further, the Estate fails to make a plain-error argument. This presents a
problem. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011)
(“[T]he failure to argue for plain error and its application on appeal . . . marks the end
of the road for an argument for reversal not first presented to the district court.”). But
the bigger problem is that the Estate did raise this argument below. Specifically, it
raised its tolling argument for the first time in its motion to reconsider the district
court’s order granting summary judgment to Shoaga. Thus, the district court treated
the argument as waived and declined to consider it. See Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (noting that motion to reconsider is
“inappropriate vehicle[]” in which to advance new arguments that litigant could have
presented previously).
22 Because the Estate fails to acknowledge—let alone challenge—the district
court’s waiver ruling, the Estate necessarily fails to demonstrate the district court
abused its discretion in declining to equitably toll the statute of limitations. See Nixon
v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (noting that appellant
cannot prevail on appeal “if the reasons that were given by the district court” for
rejecting an argument “go unchallenged”; instead, appellant must “explain what was
wrong with the reasoning that the district court relied on in reaching its decision”).
And because that means the district court’s equitable-tolling ruling stands on appeal,
see id. at 1369, we conclude that the Estate’s claim against Boyer is time-barred. We
therefore affirm the district court’s order granting summary judgment to Boyer.
Conclusion
For the reasons discussed above, the district court erred in concluding that the
Estate’s claims against all the defendants were time-barred without first asking when
the Estate’s claims against each defendant accrued. Further, with the exception of
Boyer, the defendants fail to demonstrate that under such an individualized approach,
the Estate’s claims accrued more than two years before it filed suit. Accordingly,
although we affirm the district court’s order granting summary judgment to Boyer,
we reverse the district court’s orders granting summary judgment to Shoaga,
Johnson, Algien, and Felzein and remand to the district court for further proceedings
23 on the Estate’s claims against them.
Entered for the Court
Nancy L. Moritz Circuit Judge