UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES RALPH DAWSON, JR., 

 Plaintiff - Appellant, 

v. 

JEFF ARCHAMBEAU, the CEO of 

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. 

No. 21-1307 

(D.C. No. 1:16-CV-00489-CMA-NYW) 

(D. Colo.) 

_________________________________ 

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August 26, 2022, is hereby withdrawn, and we direct the Clerk of Court to issue the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 15, 2022

Christopher M. Wolpert 

Clerk of Court

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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 

Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 2
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES RALPH DAWSON, JR., 

 Plaintiff - Appellant, 

v. 

JEFF ARCHAMBEAU, the CEO of 

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. 

No. 21-1307 

(D.C. No. 1:16-CV-00489-CMANYW) 

(D. Colo.) 

_________________________________ 

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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 15, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 3
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, 

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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). 

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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. 

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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 

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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, 

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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 

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