Dawson v. Archambeau ( 2022 )


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  • Appellate Case: 21-1307     Document: 010110739747       Date Filed: 09/15/2022        Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                        September 15, 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
    _________________________________
    Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
    _________________________________
    We issued an Order and Judgment in this appeal on August 26, 2022, which we
    have sua sponte determined should be modified. The Order and Judgment issued on
    August 26, 2022, is hereby withdrawn, and we direct the Clerk of Court to issue the
    attached modified Order and Judgment with today’s filing date.
    Appellate Case: 21-1307     Document: 010110739747        Date Filed: 09/15/2022     Page: 2
    Further, we deny as moot the motion submitted by Sean Marotta and Bryan
    Lammon for leave to file a suggestion in support of rehearing. In light of the issuance of
    a modified Order and Judgment with today’s filing date, we also deny as moot Appellant
    James Dawson’s petition for panel rehearing and rehearing en banc. The deadline for
    filing a petition for panel rehearing or rehearing en banc from the modified Order and
    Judgment runs from today’s date. See Fed. R. App. P. 35(c), 40(a)(1).
    Entered for the Court
    CHRISTOPHER M. WOLPERT, Clerk
    2
    Appellate Case: 21-1307    Document: 010110739747   Date Filed: 09/15/2022   Page: 3
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    FOR THE TENTH CIRCUIT                   September 15, 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-
    JEFF ARCHAMBEAU, the CEO of                           NYW)
    Colorado Health Partners; RICK                      (D. Colo.)
    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: 010110739747   Date Filed: 09/15/2022   Page: 4
    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,
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    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). 1
    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
    1
    After Mr. Dawson filed the notice of appeal and his opening brief, a
    new version of Rule 3 went into effect. We don’t regard it “just” or
    “practicable” to apply the new rule here because it governs the contents of
    the notice of appeal, which had already been filed. See Order (Roberts,
    C.J.) (Apr. 14, 2021).
    3
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    trigger appellate jurisdiction as to defendants Archambeau, Raemisch, and
    Tiona.
    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.
    4
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    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
    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
    5
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    defendants didn’t waive exhaustion by omitting it in their motion to
    dismiss). 2
    Mr. Dawson argues that our reversal of the first summary judgment
    order barred subsequent consideration of exhaustion. For this argument, he
    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
    2
    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).
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    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
    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
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    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).
    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,
    8
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    the district court didn’t err in granting summary judgment to Mr. Frickey.
    He couldn’t incur liability because Mr. Dawson hadn’t exhausted available
    administrative remedies.
    Entered for the Court
    Robert E. Bacharach
    Circuit Judge
    9