F I L E D

United States Court of Appeals

Tenth Circuit

JUN 4 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROD DIDERICKSON, a patient at the Utah State

Hospital, individually and on behalf of all others

similarly situated; CLARA DIDERICKSON,

Plaintiffs-Appellants,

 and

CHRISTOPHER O’LEARY, involuntary civil

committee,

Plaintiff,

v.

DOCTOR ANTHONY GILLETT, in his official

capacity as treating psychiatrist; RICHARD

SPENCER, in his official capacity as Clinical

Director of the Utah State Hospital; MEREDITH

ALDEN, in her official capacity as Executive

Director of the Division of Mental Health; ROD

BETIT, in his official capacity as Executive Director

of the Department of Human Services; WAYNE

BROWN, Dr., in his official capacity as treating

psychiatrist,

Defendants-Appellees,

 and

MILO ANDREUS, Dr., and WARD M. HEDGES,

M.D., in their official capacities as treating

psychiatrists,

Defendants.

No. 97-4120

(D.C. No. 96-CV-659)

(D. Utah)
*

 This order and judgment is not binding precedent, except under the doctrines of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

1

 Christopher O’Leary was a plaintiff in the complaint filed in district court but

has not joined the appeal.

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ORDER AND JUDGMENT*

Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.

Rod and Clara Diderickson, patients at the Utah State Hospital (Hospital), appeal

the district court’s order granting summary judgment in favor of the Hospital.1 As their

sole issue on appeal, they contend the Hospital was required to appoint a guardian to

exercise substituted judgment on their behalf before forcibly medicating them with

psychotropic drugs. We affirm the district court’s order granting summary judgment,

declining review of the issue raised by the Didericksons because it is raised for the first

time on appeal.

The Didericksons’ complaint in district court alleged they were medicated with

psychotropic drugs against their will, and that they suffered unnecessary roughness and

were unnecessarily restrained at the Hospital. The complaint did not request relief for

failure to appoint a guardian to exercise substituted judgment on their behalf, and the

district court’s order did not discuss appointment of a guardian. The Didericksons raise
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this issue for the first time on appeal.

As a general rule, we do not decide issues initially raised on appeal. See TeleCommunications, Inc. v. Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997); Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 720-21 (10th Cir. 1993). This rule sensibly

prohibits a party from losing “in the district court on one theory of the case, and then

prevail[ing] on appeal on a different theory.” Id. at 721.

Review of issues not raised below would require us frequently to remand

for additional evidence gathering and findings; would undermine the need

for finality in litigation and conservation of judicial resources; would often

have this court hold everything accomplished below for naught; and would

often allow a party to raise a new issue on appeal when that party invited

the alleged error below.

Tele-Communications, 104 F.3d at 1232.

The Didericksons argue they raised the issue by referencing the fact they were

forcibly medicated while at the Hospital and by citing cases that address guardianship

issues in their complaint. However, vague, arguable references to a point in the district

court proceedings do not preserve the issue on appeal. Lyons, 994 F.2d at 721. Since the

Didericksons did not challenge the Hospital’s failure to provide them with a guardian in

district court, they have failed to preserve the issue on appeal.

The Didericksons also argue we should decide the guardianship issue to “prevent

manifest injustice” under the “exceptional circumstances” presented in their appeal. See

Okland Oil Co. v. Conoco, Inc., ___ F.3d ____, 1998 WL 251130 *21 n.4 (10th Cir. May

19, 1998). We note that the Didericksons’ appeal was argued the same day this court
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heard oral argument in Jurasek v. Verville, et al., Case No. 97-4082. In stark contrast to

the Didericksons’ appeal, Jurasek raised the guardianship issue in his complaint, briefed

the issue before the district court, and fully developed the record for appeal. Moreover,

the district court considered the parties’ arguments and relevant case law and ruled on the

guardianship issue. Since the issue will be resolved by our decision in Jurasek, no

“manifest injustice” will occur by our refusing to consider the newly-raised issue in this

appeal.

The district court’s order is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge