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 th is appeal on August 26, 2022, which we have sua sponte determined should be modi fied. The Order and Judgment issued on August 26, 2022, is hereby withdrawn, and we direct the Clerk of Court to issue the attached modified Order and Judg ment with today’s filing date. 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: 12 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 f iling date, we also deny as moot Appellant James Dawson’s petition for pane l rehearing and rehearing en banc. The deadline for filing a petition for panel rehearing or rehear ing 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: 2UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JAMES RALPH DAWSON, JR., Pl aintiff - 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,
De fendants - 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 ba sed 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 bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve 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: 32 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 summar y 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 th at our jurisdiction is confined to the grant of summary judgm ent to Mr. Fricke y. 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 appe llate 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 remedi es. Prison Litigation Reform Act, Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 43 42 U.S.C. § 1997e(a). Su ch remedies were avai lable to Mr. Dawson through the state prison’s gr ievance system. Mr. Daws on used this system to file grievances, but th ey didn’t address anything that Mr. Frickey had done or not done. Given th e failure to file a grie vance about Mr. Frickey’s conduct, the district cour t correctly granted summ ary judgment to him.
1. We lack appellate jurisdiction over the appellate arguments involving defendants Archambe au, 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 app eal, the appellant must designate the order being appeal ed; 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 (10t h Cir. 1997) (limiting our jurisdiction). 1 Mr. Dawson seeks to appeal two summary-judgment orders. He filed a notice of appeal after th e second order, but not af ter the first order. In this notice of appeal, Mr. Dawson designated the aw ard of summary judgment to Mr. Fricke y. Left unmentioned wa s the prior award of summary judgment to the other defendant s. So the notice of appeal didn’t

1 After Mr. Dawson file d the notice of appeal and his opening brief, a new version of Rule 3 went into eff ect. We don’t regard it “just” or “practicable” to apply the new rule he re because it governs the contents of the notice of appeal, which had already been filed. See Order (Roberts, C.J.) (Apr. 14, 2021). Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 54 trigger appellate jurisdiction as to defendants Archambe au, Raemisch, and Tiona. Mr. Dawson argu es that a docketing stat ement can supplement the notice of appeal. For the sa ke of argument, we can assume that Mr. Dawson is right. Even so, he never filed a docketing statement. When appellants file br iefs within the deadline for the notices of appeal, those briefs ca n supplement the designa tion 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 di dn’t timely file a notic e of appeal for the award of summary judgment to defe ndants Archambeau, Raemisch, and Tiona, we lack jurisd iction to review the su mmary-judgment rulings in their favor.
2. Mr. Dawson failed to exhaust admi nistrative remedi es as to Mr. Frickey’s conduct. For the ruling as to Mr. Frickey, ho wever, we do ha ve jurisdiction. On the merits, the pa rties disagree on exhaus tion of available administrative remedies, so we must decide

 whether Mr. Frickey waived his exhaustion argument by omitting it in his first su mmary-judgment mo tion and

 whether Mr. Dawson exhausted available administrative remedies. Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 65 A. Mr. Frickey did not waive his exhaustion argument for summary judgment. Mr. Frickey had ear lier moved for summar y judgment but didn’t argue nonexhaustion. The district court granted the motion, but we reversed and remanded th e case. On remand, Mr. Frickey moved again for summary judgment. This time, he argued nonexhaustion as a ground for summary judgment. Mr. Da wson 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 an swering the complaint, Mr. Frickey raised nonexhaustion as a defense. He didn’t waiv e the defense by failing to include it in his first summary-judgment motion. See Villante v. VanDyke , 93 F. App’x 307, 308–09 (2 d Cir. 2004) (unpublished) (concluding that the defend ants hadn’t waiv ed their exhaustion defense by omitting it in their first mo tion for summary judgment); Drippe v. Gototweski , 434 F. App’x 79, 81 (3d Cir. 2011) (unpublished ) (concluding that the defendant did no t waive his exhaustion defense “by failing to raise it in a timely motion fo r summary judgment”); see also Gray v. Sorrels , 818 F. App’x 787, 791 ( 10th Cir. 2020) (unpublished) (concluding that the Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 76 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 doctrin e provides that when we decide an issue, that decisi on governs in a later appeal. Capps v. Sullivan , 13 F.3d 350, 353 (10th Cir. 1993). But we didn’t addr ess 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 la w 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 (1 0th Cir. 2016) (unpublished).
B. Mr. Dawson failed to exha ust available administrative remedies. On the merits, Mr. Dawson de nies the availability of an administrative remedy for past harm. Granted, exhaustion was necessary only if Mr. Dawson had an available ad ministrative remedy. See Porter v. Nussle , 534 U.S. 516, 524 (2002 ). But the administ rative process did

2 These unpublished opin ions are persuasive but not precedential. See 10th Cir. R. 32.1(A); United States v. Austin , 426 F.3d 1266, 1274 (10th Cir. 2005). Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 87 supply Mr. Dawson with potential remedies. For example, prison authorities could have gran ted prospective relief, like ordering prompt medical attention. Becaus e remedies were availabl e to Mr. Dawson, he had to exhaust the admini strative process. See Woodford v. Ngo , 548 U.S. 81, 85 (2006) (“[A] prisoner must now exhaust administ rative remedies even where the relief sought— monetary damages—canno t be granted by the administrative process.”); Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) (“Even wh ere the ‘available’ remedi es would appear to be futile at providi ng the kind of remedy sought, the prison er must exhaust the administrative reme dies available.”) The remaining question is whet her Mr. Dawson exhausted the administrative process for his claims against Mr. Fr ickey. Mr. Dawson did file three grievances. To determine wh ether 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 ha d allegedly Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 98 done wrong. See CDOC Admin. Reg. 850-04(IV)(C) (“A grievance is a written complaint by an offender f iled 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 compla ints at a medical appo intment. 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 includ e his blood tests in his me dical records. But this grievance didn’t bear on Mr. Dawson’s allegations about Mr. Fr ickey. In the third grievance, Mr. Dawson had co mplained of his in ability to get a new treatment being given to other in mates. Again, the grievance hadn’t mentioned anything that Mr. Frickey did or didn’t do. Considered separately or together, the three grievan ces didn’t alert authorities to any dissatis faction with Mr. Fric key’s conduct. So Mr. Frickey was entitled to su mmary 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 j udgment to Mr. Fricke y. In our view, Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 109 the district court didn’t err in granting summary judgment to Mr. Frickey. He couldn’t incur liabilit y because Mr. Dawson ha dn’t exhausted available administrative remedies.

Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 21-1307 Document: 010110739747 Date Filed: 09/15/2022 Page: 11