PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JIMMY JOSEPH VASQUEZ, Plaintiff - Appellant/Cross- Appellee,

v. JEANNE DAVIS, in her individual capacity; BRIAN WEBSTER, in his individual capacity; KATHLEEN MELLOH, in her individual capacity; MAURICE FAUVEL, in his individual and official capacities; RICK RAEMISCH, in his official capacity, Defendants - Appellees/Cross- Appellants, and KATHLEEN MARTORANO, in her individual capacity, Defendant/Cross-Appellant, and GATBEL CHAMJOCK, in his individual capacity, Defendant - Appellee. Nos. 17-1026 & 17-1044

________________ _________________ Appeals from the United States District Court for the District of Colorado (D.C. No. 1:14-C V-01433-WJM-CBS) FILED United States Court of Appeals Tenth Circuit 

### February 23, 2018
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Elisabeth L. Owen, Prisoners’ Justice League of Colorado LLC, Denver, Colorado, for Plaintiff Vasquez. Chris W. Alber, Senior Assist ant Attorney General, Denv er, Colorado, for Defendants Davis, Martorano, Webster, Me lloh, Fauvel, and Raemisch. Joseph P. Sanchez, Goodspeed & Merrill, De nver, Colorado, for Defendant Chamjock.

________________ _________________ Before BRISCOE , EBEL , and MATHESON , Circuit Judges.

________________ _________________ EBEL , Circuit Judge.

________________ _________________ In this 42 U.S.C. § 1983 action, Plaint iff Jimmy Vasquez, an inmate in the Colorado Department of Corrections (“ CDOC”), contends that CDOC medical providers were deliberately indi fferent to his serious medical needs in violation of the Eighth Amendment. Vasquez specifically alleges that Defendants delayed treating him for the hepatitis C virus (“HCV”), resulting in his suffering life-threatening permanent liver damage. In appeal No. 17-1026, we A FFIRM the district court’s decision to grant Defendants summary j udgment, concluding Vasquez’s claims against Defendants Davis, Webster, Mell oh, and Chamjock are time-barred, and Vasquez failed to present sufficient evidence that Defendant Fauvel acted with deliberate indifference. In appeal No. 17-1044, we VAC ATE an injunction requiring the CDOC to test Vasquez’s liver f unction every three months.3 I. BACKGROUND Vasquez began serving a life sentence in th e CDOC in 2004. At that time, he was diagnosed with HCV. HCV is transm itted primarily thro ugh blood-to-blood transfers by, for instance, sh aring needles used for intrav enous drug use or tattoos. While 75% to 80% of people with chr onic HCV suffer no serious problems, the remainder, like Vasquez, suff er progressive liver damage from liver diseases such as cancer or cirrhosis. Cirrhosis, which is part icularly relevant here, “is a progressive disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning effect ively.” (Aplt. App. 609 ¶ 34.) Liver damage from HCV can progress slowly, taking up to two or three decades. During the course of Vas quez’s prison sentence, th e treatment of HCV has evolved and improved. When he first ente red prison in 2004, HCV was treated, with limited success, using the an tiviral medications interfer on and ribavirin. These medications could produce severe side ef fects—“many guys get very sick on” interferon and ribavirin, (id. 445)

— and could not be used if the patient had “decompensated” liver cirrhosis. (Id. 270-71 ¶¶ 19, 21; 1157 ¶¶ 19, 21.) In 2011, medical providers began usi ng other antiviral medications to supplement interferon and ribavirin, improving cure rates. In 2013, a new antiv iral medication sovaldi was used with interferon and/or ribavirin. In 2014, harvoni became available to treat specific genotypes of HCV. Although these antiv iral medications can cure HCV with increasing effectiveness, th ey do not reverse any resul ting permanent liver damage.4 These antiviral treatments for HCV are expensive, ranging from $40,000 to $160,000 per patient, depe nding on the length of trea tment, and they do not immunize the patient from becoming re-inf ected through, for example, further sharing of needles for intravenous drug use. In light of this, the CDOC requires that an inmate take six months of drug and alcohol avoida nce classes (“D&A classes”) before becoming eligible for HCV treatment . Further, CDOC policy places the onus on the inmate both to request HCV treatm ent and to complete the requisite D&A classes. When Vasquez was diagnosed with HCV in late 2004, CDOC officials gave him a two-page handout expl aining HCV and the general tr eatment available at that time. Vasquez asked his case manager in March 2005 for assi stance enrolling in D&A classes so that he could eventually be treated for HCV. At that time, however, there were no D&A classes av ailable in the high security section of the CDOC’s prison in Sterling, where Vasquez was hous ed. Even though CDOC policy was to transfer an inmate who need ed D&A classes to a facility where those classes were offered, such transfer s were subject to CDOC security determinations. In Vasquez’s case, his case manager noted that she wo uld check on the possib ility of transferring Vasquez to another prison where he could attend D&A classes, but the record does not indicate whether the cas e manager ever checked. 1

1 Vasquez’s case manager at this time was Defendant Kathleen Martorano. On appeal, Vasquez does not challenge the distri ct court’s decision to grant her summary judgment.5 In May 2005, six months after Vasquez entered the CDOC, Defendant Jeanne Davis, a prison nurse, confir med that Vasquez’s HCV was chronic, and notified him that he was medically eligib le for HCV treatment after he completed six months of D&A classes. Although Davis further inform ed Vasquez that he should “send a kite to medical” (id. 277 ¶ 57)—tha t is, send a written request to the prison medical clinic if he was interested in receiving treatmen t—Vasquez did not make such a request. Vasquez did not seek to enroll in D&A cl asses again for another seven years. During that time, D&A classe s became available to him. In 2008, because many inmates were having trouble enrolling in these classes, the CDOC relaxed the requirements for what qualified as D&A classes. In 2012 or 2013, CDOC reinstated its stricter requirements for D&A classes, but made thos e classes available to all inmates, including those housed in Sterling’ s high security wing. Vasquez indicates that he knew in 2010 that there were D&A classes available to him. Beginning in August 2006, a series of CDOC physician’s assistants, including Defendants Brian Webster, Gatbel Chamjock , and Kathleen Melloh, treated Vasquez for a variety of medical conditions. Thes e Defendants were aware both that Vasquez had HCV and that he was beginning to sh ow signs of liver damage. These signs included consistently high liv er enzyme and ammonia leve ls in his blood. Based on his high ammonia levels, Defe ndant Webster diagnosed Vas quez with liver cirrhosis in June 2008, and spoke to Vasquez about his “worsening” liver condition resulting from his HCV (id. 222, 342) . Webster prescribed Va squez with medication to decrease the amount of ammonia in his blood. But Webster did not refer Vasquez for6 D&A classes, mistakenly believing both that the prevailing antivir al treatment could not be used on patients who had already de veloped any degree of liver cirrhosis and that Vasquez’s high security classificati on precluded him from pa rticipating in D&A classes. After 2008, Defe ndants Webster, Chamjock and Melloh continued to monitor Vasquez’s condition and to treat his symptoms, incl uding lowering his ammonia levels. On January 14, 2012, Vasquez sought medical attention, reporting he had vomited blood. A day or two later, Vas quez requested assistan ce in enrolling in D&A classes. By this time, Vasquez knew that he had HCV, that progressive liver damage could result from untreated HC V, that his liver condition had been “worsening” for a number of years, and that to obtain treatment, he first had to complete six months of D&A classes. On February 6, 2012, De fendant Dr. Maurice Fauvel saw Vasquez for the first time, noted Vasquez’s interest in receiving HCV treatment, discussed the treatment protoc ol with him “at le ngth,” and referred Vasquez to his case manager to enroll in available D&A classes. (Id. 261.) After several months of bureaucrat ic run-around, Vasquez bega n attending D&A classes in July 2012, and completed thos e classes in January 2013. 2 A week after Vasquez began these classe s, in July 2012, Dr. Fauvel discussed with Vasquez the possibili ty of HCV treatment, cons ulted with CDOC medical

2 The CDOC later determined that, through no fault of Vasquez, these classes did not qualify as the required D&A classes, but ev entually the CDOC waived any concern about his having completed th e appropriate classes.7 administrators about Vasquez, and then or dered a liver biopsy, which was the next step in determining whether Vasquez qualif ied medically for the prevailing antiviral HCV treatment. The liver biopsy had to be approved by CDOC’s third-party medical care payor, which appears to have delaye d indefinitely Dr. Fauvel’s request. In May 2013, Vazquez began vomiting la rge amounts of blood and was rushed to Denver for surgery to repair hemorrhagi ng varices in his esophagus. Such varices can be caused by liver cirrhosis. According to Vasquez, at this time the doctors in Denver told him that, because of the extent of damage to his liver, he did not qualify medically for then-available antiviral HCV treatments. When he returned to the Sterling prison in June 2013, Vasquez agai n asked Dr. Fauvel for HCV treatment and filed several grievances complaining of the lack of HCV treatment. In May 2014, having exhauste d his administrative remedies, 3 Vasquez, acting pro se, filed this 42 U.S.C. § 1983 lawsuit. The district court appointed Vasquez counsel. While this case wa s pending, the CDOC, in 2016, approved Vasquez to be treated with a new antiviral regime n of sovaldi and ribavirin. In this litigation, Vasquez seeks damages from several CDOC medical providers, alleging they were deliberately i ndifferent to his serious medical needs. The district court granted each of these Defendants summary judgment. In appeal

3 Over Defendants’ objection, the district court ruled that Vasquez adequately exhausted his administrative remedies as required under 42 U.S.C. § 1997e(a). Defendants do not challenge that ruli ng on appeal and the exhaustion of administrative remedies is not , in any event, a jurisdictiona l prerequisite, see Jones v. Bock, 549 U.S. 199, 211-12, 216 (2007) (holding exha ustion of administrative remedies under § 1997e(a) is affirmative defense).8 No. 17-1026, Vasquez challenges those ruli ngs, but only as to Defendants Davis, Webster, Chamjock, Melloh and Fauvel. In appeal No. 17-1044, the State Defendants (all but Defendant Chamjock) ch allenge the district court’s decision to enter, sua sponte, a permanen t injunction requiring CDOC o fficials to test Vasquez’s liver function every three mont hs. We have jurisdiction to consider these appeals under 28 U.S.C. § 1291. II. APPEAL NO. 17-1026 This court reviews de novo the district court’s decision to award Defendants Chamjock, Davis, Webster, Melloh and Fauvel summary judgment, viewing the evidence in the light most favor able to Vasquez. See Sylv ia v. Glanz, 875 F.3d 1307, 1328 (10th Cir. 2017). The district court “shall gran t summary judgment if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To recover damages from each of thes e Defendants under § 1983, Vasquez had to show that such Defendant personally participated in the alleged constitutional violation. See Robertson v. Las Animas Cty. Sheri ff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). Here, Vasquez alleged that Defe ndants violated the Eighth Amendment by acting with delibe rate indifference to his se rious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To recover as to a particular Defendant, Vasquez had to prove as to that Defendant both an objec tive and a subjective element of his claim. See Al-Turki v. Robins on, 762 F.3d 1188, 11 92 (10th Cir. 2014).9 To prove the objective elem ent of his deliberate-indi fference claim, Vasquez had to show that his “med ical condition was sufficiently serious to be cognizable under the [Eighth Amendment’s] Cruel and Unusual Punishment Clause.” Id. at 1192 (internal quotation marks omitted). Where, as here, the claim involves a delay in treatment, Vasquez had to show “that the delay resulted in substantial harm,” a requirement that “may be satisfied by” a showing of “lifelong handicap, permanent loss, or considerable pain.” Id. at 1193 (internal quotati on marks omitted). To prove the subjective element of hi s claim, Vasquez had to s how for each liable Defendant that such Defendant “kn[e]w of and disreg ard[ed] an excessive risk to [Vasquez’s] health or safety.” Id. at 1192 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A. Vasquez’s claims against Defendants Davis, Webster, Chamjock, and Melloh are time-barred 1. Vasquez’s claims agai nst these Defendants a ccrued by February 2012 Vasquez filed this case on May 21, 2014. The parties agree th at, to be timely, Vasquez had to have filed suit within two years from the da te his § 1983 Eighth Amendment claims accrued. See Myers v. Koopman, 738 F.3d 1190, 1194 n.2 (10th Cir. 2013) (applying Colo. Rev. Stat. § 13-80-102(1)(a)). See generally Wallace v. Cato, 549 U.S. 384, 387 (2007) (looking to rele vant state’s law fo r § 1983 limitations period). Federal law, which governs when a § 1983 claim accrues, provides that Vasquez’s claims accrued when he had “a complete and pres ent cause of action”; that10 is, when he could have file d suit and obtained relief. Id. at 388 (internal quotation marks omitted). In light of the objectiv e and subjective elements of Vasquez’s Eighth Amendment claims, thos e claims accrued when he “knew or had reason to know[,]” Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011), separately for each of these Defendants—Davis, Webster, Chamjock and Melloh—to be liable, that they had acted with deliberate indifferenc e to a known risk to Vasquez’s medical needs, and that his or her de liberate indifference re sulted in a delay in treatment that caused Vasquez substantial harm. See Bauer v. City & Cty. of Denver, 642 F. App’x 920, 924 (10th Cir. 2016) (unpublished) (holding Eighth Amendment claim accrued when inmate knew he had been denied medi cal treatment and that he would lose his foot as a result). 4 The claim accrued once Vasquez knew Defendants’ deliberate indifference caused him substant ial harm, “even though the fu ll extent of the injury is not then known or predictabl e.” Wallace, 549 U.S. at 391 (internal quotation marks omitted). Here, the deliberate indifference (if any) of these Defendants—Davis, Webster, Chamjock and Melloh—would have occurred more than two years before Vasquez filed this action. Defendant Da vis’s only contact with Vasquez was in 2004 and 2005. Defendant Webs ter last treated Vasquez in March 2009. Defendant Chamjock refilled Vasquez’s prescriptions and saw him just a few times between May 2008 and May 2010. Melloh refilled Vasquez’s prescrip tions and ordered periodic lab tests in 2010, and saw Vasquez once, in January 2012.

4 Though unpublished, we find Bauer’s reasoning persuasive.11 Vasquez’s claims against th ese Defendants, therefore, cannot be timely unless he did not know, or have reason to kno w, that their deliberate indifference substantially harmed him until at least May 2012, two years be fore he filed this suit. The district court, however, correctly c oncluded instead that Vasquez knew he had been substantially harmed by no later than February 2012. By that time certainly (and likely at an even earlier time), Va squez knew he had chronic HCV and that HCV could “eventually kill you” (Aplt. A pp. 530). Vasquez further knew that progressive liver damage was possible from HCV, and that since June 2008 his liver was “worsening . . . from HCV” (id. 222, 342) . Vasquez also knew that, from June 2008 forward, he had to take prescrip tion medication each day for his worsening liver. In addition, Vasquez knew that, in order to obtain HCV treatment, he needed to complete six months of D&A classes, but that when he trie d to enroll in those classes in March 2005, he was unable to do so. A few days af ter seeking medical attention for vomiting blood in January 20 12, Vasquez again began requesting to enroll in D&A classes in orde r to get HCV treatment. Vasquez asserts that ther e is no evidence “that he understood the import of these things” because he is not a medical professional and “is severely intellectually limited.” (Vasquez Br. 29.) But Vasquez’s s ubsequent conduct belies that assertion. After requesting to enroll in D&A classes in January 2012, Vasquez met with Dr. Fauvel in February 2012; Fauvel noted Va squez’s interest in the D&A classes, discussed HCV treatment with Vasquez “at length,” indicated Va squez “understood,” and referred Vasquez to his case manager to enroll in D&A clas ses. (Aplt. App.12 261.) When he ran into several bureaucratic snags to enrolling, Vasquez filed several grievances, asserting that he needed to enroll in the D&A cl asses in order to get “the treatment I need for hepatit is C. . . . becau se its [sic] been long enough” and apologizing “for the inconvenie nce but I need this treatment.” (Id. 835.) In light of this evidence, the district court correctly held that Va squez knew, certainly no later than February 2012, that any failure of Defendants Davis, Webster, Chamjock and Melloh to treat Vasquez’s HC V had substantially harmed him, thereby triggering the two-year limitations period. 5 2. Continuing violation Vasquez argues that, even if his Eight h Amendment claims against Defendants Davis, Webster, Chamjock and Melloh acc rued in February 2012, the “continuing violation” doctrine saves those claims from being time-barred. Va squez’s theory is that, even if his § 1983 claims against th ese four Defendants accrued in February 2012, the Eighth Amendment vi olation underlying his clai ms—the delay in treating his HCV—continued until he re ceived he was finally trea ted for HCV in February
2016. The continuing violation doctrine was de veloped in the Title VII employment law context, see Hunt v. Bennett, 17 F.3d 12 63, 1266 (10th Cir. 19 94), and this court has not yet decided whether it should appl y to § 1983 claims, see Colby v. Herrick, 849 F.3d 1273, 1280 (10th Cir. 2017) (assuming “[f]or th e sake of argument” that

5 Vasquez has never asserted that the limitations period should be tolled because of mental or other disa bility or obstacle.13 continuing violation doctrine applies to § 1983 claims, but concluding doctrine would not save time-barred claim in that case). We need not decide the question here, either, because even if we were to apply that doctrine, it woul d not save Vasquez’s claims against Defendants Davi s, Webster, Chamjock, or Melloh. That is because, as this Court has recognized it, the continuing violation “doctrine is triggered by continuing unlawful acts but not by continuing damages from the initial violation.” Colby, 849 F.3d at 1280; see also Mata, 635 F.3d at 1253 (citing other Tenth Circuit cases). Said another way, the continuing violation doctrine, as we have defined it, would apply here only when a particular defendant allegedl y committed wrongful acts within, as well as outside , the limitations period. See also Shomo v. City of New York, 579 F.3d 176, 183-84 (2d Cir. 2009). Here, none of these Defendants—Davis, Webster, Chamjock or Melloh—had any inte ractions with Vas quez within the twoyear period preceding his filing this acti on. Even if we applied the continuing violation doctrine, then, it would not save Vasquez’s claims against these Defendants. B. Vasquez failed to submit sufficien t evidence that Defendant Fauvel acted with deliberate indifference Vazquez’s claim against Defendant Fauvel is different. Because almost all of Fauvel’s interactions with Va squez occurred within the two-year period immediately preceding his filing this suit, any substant ial harm resulting from Fauvel’s deliberate indifference as part of these interactions would support a timely claim against him. The district court, nevertheless, gran ted Fauvel summary judgment, concluding14 Vasquez failed to present su fficient evidence from which a jury could find that Dr. Fauvel had subjectively acted with deliberate indifference. The record supports the district court’s determination. The subjective component of an Eight h Amendment claim “presents a high evidentiary hurdle to . . . [§ 1983] plaintif fs.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). To estab lish that Dr. Fauvel acted w ith deliberate indifference, Vasquez had to show that Fauvel both knew of a “substantial risk of serious harm” to Vasquez and acted in disregard of that ri sk. Farmer, 511 U.S. at 837. Deliberate indifference to such a risk re quires more than a showing of negligence, see id. at 835, or even malpractice, see Self, 439 F.3d at 1230-33. Further, this “subjective component” of Vasquez’s clai m “is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises hi s considered medical judgment.” Id. at 1232. Here, there is no evid ence that Dr. Fauvel acted with the required culpability to establish Eighth Amendment liabi lity in treating Vasquez. When Fauvel first saw Vasquez in Febr uary 2012, Vasquez had already been diagnosed with both chroni c HCV and resulting liver ci rrhosis. At their first meeting, Fauvel noted Vasquez wanted to en roll in D&A classes in order to receive HCV treatment, discussed that treatment with Vas quez “at length,” and then referred Vasquez to his case manager to enroll in D&A classes. (Aplt. App. 434.) Once Vasquez was enrolled, Fauvel sought to fa cilitate Vasquez getting treatment for his HCV. But Fauvel had at least two related problems in facilitati ng treatment: First, there is no indication that Fauvel himself could authorize treatment; instead, HCV15 treatment had to be authorized by a CDOC in fectious disease commi ttee. In light of that, Fauvel sought to comple te the workup and other n ecessary steps before the committee could consider Vasquez for treatm ent. Second, Fauvel was not sure if Vasquez could qualify medically for HCV trea tment in light of his cirrhosis. Fauvel, therefore, consulted with higher level C DOC administrators regarding Vasquez. Those administrators encouraged Fauvel to order a liver biopsy, which was needed for treatment approval and would indicate whether Vasquez’s li ver was already too damaged for treatment. Fauvel requested a liver biopsy August 15, 2012. However, Fauvel did not have authority to have the biopsy done, either; it had to be approved by the CDOC’s third-party medical payor . And apparently Fauvel’s request languished for a long time without any action. Dr. Fauvel did not see Vasquez for almost a year after he requested the liver biopsy; Vasquez was seen dur ing this time by other medi cal providers. In the meantime, Vasquez had to be rushed to Denve r in May 2013, for surgery to repair his bleeding esophageal varices. For a time, recovery from this surgery took precedence over possibly treating Vasquez's HCV. Mo reover, according to Vasquez, Denver doctors told him that he could no longer receive HCV treatment because his liver was so damaged. Several months later, another doctor appare ntly outside the CDOC saw Vasquez, but did not advo cate treating his HCV. At about this same time period, Vasquez was also diagnosed with multiple myeloma. For a while, evaluation and treat ment of this condition took precedence. Nonetheless, when Fauvel saw Vasquez in June 2013, after Va squez returned from16 Denver, Fauvel emailed the CDOC “Hep C committee” to see if Vasquez was on the committee’s schedule and to determine if “everything [is] completed for the Hep C treatment.” (Id. 427.) On several later occasions, Fauvel attempted to correspond with upper level CDOC medical administra tors about possible HCV treatment for Vasquez. In addition, Fauve l continued to see Vasquez every few weeks, monitored his liver condition and treated his ammoni a levels, among other symptoms, through the time Vasquez initia ted this litigation. A jury could not find from this record that Dr. Fa uvel acted with deliberate indifference to a serious risk to Vasquez’s health. Instead, the record esta blishes that that Fauvel exercised his medical judgment to provide Vasquez with medical care within the limitations im posed by Vasquez’s health and CDOC treatment restrictions. 6
III. APPEAL NO. 17-1044 While this litigation was pending, the CDOC approved treating Vasquez with the antiviral medication sovaldi. At that same time, Vasquez sought a preliminary injunction ordering the CDOC to treat him, instead, with another drug, harvoni. During a hearing on the motion for the pr eliminary injunction, evidence from both sides indicated that sovaldi, and not harvoni, was the a ppropriate antiviral medication

6 Importantly, Vasquez did not challenge th e CDOC policies pertaining to HCV, nor did he sue the CDOC officials responsible fo r creating or enforcing such policies, so that is not before us. See Hilton v. Wright, 673 F. 3d 120, 124 (2d Cir. 2012) (addressing inmates’ claim challenging department of corrections’ policy conditioning HCV treatment on inmates’ part icipation in substa nce abuse programs); Roe v. Elyea, 631 F.3d 843, 847 (7th Cir. 2011) (upholding jury’s verdict that prison policy regarding treatment of HC V was deliberately indifferent).17 to treat Vasquez’s HCV. On that basis, the district court de nied Vasquez’s motion for a preliminary injunction. The cour t, nevertheless, sua sponte entered an injunction requiring Defendant Rick Raemisch , in his official ca pacity as executive director of the CDOC, to ensure that his subordinates tested Vasquez’s liver functioning at least every three months. When the district c ourt entered summary judgment for Defendants on Vasquez’s da mages claim, otherwise ending this litigation, the court made that injunction permanent. In their cross-appeal, the State Defendants—CDOC Executive Director Raemisch, sued in his offici al capacity, and Defendants Davis, Webster, Melloh and Fauvel (but not Chamjock) sued in th eir individual capacity—challenge that permanent injunction, arguing that the distri ct court abused its discretion 1) to the extent it entered the injunction against a ny Defendant sued in his individual capacity, and 2) in entering an injunction without finding the existence of any constitutional violation. We agree with the first point , the injunction can (and did) apply only to Defendant Raemisch in his official cap acity. See Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011). We need not address th e second argument because Vasquez, in any event, doe s not contest that the inju nction should be vacated. Accordingly, we remand this action with instructions for the district court to vacate this injunction and di smiss that action.18 IV. CONCLUSION For the foregoing reasons, we AFFIRM summary judgment for Defendants in appeal No. 17-1026 and REMAND appeal No . 17-1044 to the district court to VACATE its permanent injunction and to dismiss that ac tion as well.