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 Departmen t 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 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) ; 10 th C ir. 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) ; 10 th C ir. R. 32.1(A)

. FILED United States Court of Appeals Tenth Circuit 

### November 7, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 12 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

. I n the suit, t he district
court issued two orders . The first on e granted summary judgment to Mr. Archambeau, Dr . Tiona, and Mr. Raemisch; the second order g rant ed summary judgment to Mr. Frickey. These g rants of summary judgment led Mr. Dawson to appeal. This appeal creates two issues:
1. What is the scope of our a ppell ate jurisdiction ?
2. Did Mr. Dawson fail to exhaust available administrative remedies ?
O n the first question, we conclude that our jurisdiction is confined to the grant of summary judgment to Mr. Frickey. The jurisdictional issue is governed by a rule that changed after Mr. Dawson’s filing of his opening brief. Under the rule in effect at that time, appellate jurisdiction was confined to the award of summary judgment for Mr. Frickey because the notice of ap peal hadn’t designated any other orders or the final judgment. The new rule wouldn’t extend appellate jurisdiction because the order granting summary judgment to Mr. Archambeau, Dr. Tiona, and
Mr. Raemisch didn’t merge into the final judgment. Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 23 On the seco nd question, we conclude that Mr. Dawson failed to exhaust available administrative remedies. Federal law requires exhaustion of available administrative remedie s
. Prison Litigation Reform Act,
42 U.S.C. § 1997e(a)

. Such remedies were available to Mr. Dawson through the state prison’s grievance system. He 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 correc tly 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)

. The notice of appeal didn’t trigger appellate jurisdiction to address the award of summary judgment to defendants Archambeau, Raemisch, or Tiona.
A. The Old Version of Rule 3 The scope of appellate jurisdiction is governed by Federal Rule of Appellate Proced ure 3. This rule changed after Mr. Dawson had filed his notice of appeal and opening brief. When he filed those documents, Rule 3 limited appellate jurisdiction to the orders designated in the notice of appeal. See Fed. R. App.
P. 3(c)(1)(B) (requiring designation of the order); Foote v. Spiegal , 118 Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 34 F.3d 1416, 1422 (10 th C ir. 1997) (limiting our jurisdiction)

. Under this version of the rule, our jurisdiction would be limited.
Mr. Dawson is trying to challenge two summary - judgment orders. He filed a notice of appeal after the second order , but not after the first order.
In th is notice of appeal , Mr. Dawson designat ed the award of summary judgment to Mr. Frickey. Left unmentioned was the prior award of summary judgment to the other defendants. So the old version of Rule 3 wouldn’t have triggered 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 M r. Dawson i s right. Even so, he never filed a docketing statement. When appellant s file brief s within the deadline for the notice s of appeal, th ose brief s 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. So under the old version of Rule 3, we’d lack jurisdiction over Mr. Dawson’s appellate arguments involving defendants Archambeau, Tiona, and Raemisch.
B. The New Rule After Mr. Dawson filed the notice of appeal and his opening brief, a new version of Rule 3 went into effect. Even if we were to apply the new Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 45 version of Rule 3, 1 we’d still lack jurisdiction over the appellate arguments involving defendants Archambeau, T iona, and Raemisch. The newly amended rule clarifies that

• “[t]he notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order , ”

• “a notice of appeal encompasses the final judgment . . . if the notice designates . . . an order that adjudicates all remainin g claims and the rights and liabilities of all remaining parties ,” and

• “[a]n appeal must not be dismissed . . . for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment.” Fed. R. App. P. 3(c)(4) , 3(c)(5)(A), 3(c)(7). Mr. Dawson’s notice of appeal stated that he was appealing “the judgment of the United States District Court for the District of Colorado’s second grant of summary judgment to Defendant Robert Frickey.” R. vol. 5 at 473. This notice of appeal did not desig nate “an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties.” Fed. Rul. R. App. P. 3(c)(5)(A). So even under the new version of Rule 3, the notice of appeal wouldn’t have encompassed the final judgment. S ee R. vol. 5 at 470

– 71.

1 We’d apply the new rule if its applic ation would be just and practicable. Order (Roberts, C.J.) (Apr. 14, 2021). Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 56 Nor is there any basis to find a merger of the first summary

- judgment award into the order granting summary judgment to Mr. Frickey. The case terminated in district court when Mr. Dawson filed a stipulation of dismissal with prejudice

. This stipulation terminated the claims against all remaining parties. R. vol. 5 at 470. 2 This stipulation was self

- executing; no court order was needed. Fed. R. Civ. P. 41(a)(1)(A)(ii)

. So the award of summary judgment to Mr. Frickey didn’t merge into a later judgment or appealable order.
* * * Under either the old or new version of Rule 3, appellate jurisdiction wouldn’t exist over the award of summary judgment to defendants Archambeau, Raemisch, or Tiona.
2. Mr. Dawson failed to exhaust administrative re medies 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.

2 The clerk later made an entry on the docket, recognizing closure of the case under this stipulation. But this notation did not constitute an entry of judgment or appealable order. Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 67 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 c ase
. 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

non exhaustion argument by failing to include it in his first motion for summary judgment. We reject this contention. In answering the complaint, Mr. Frickey raised non exhaustion as a defense. He didn’t waive the defense by failing to include it in his first summary

- judgment motion. See Villante v.
VanD yke , 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) (unpublish ed) (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 Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 78 defendants didn’t waive exhaustion by omitting it in their motion to dismiss). 3 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 (10 th C ir. 1993) . But we didn’t address exhaustion in the earlier appeal, either expressly or implicitly, so the law

- of

- the

- case do ctrine 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 Wa x 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

3 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)

. Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 89 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 proce ss. 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 (10 th C ir. 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 eventu al court action against Mr. Frickey. See Kikumura v. Osagie , 461 F.3d 1269, 1285 (10 th C ir. 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 (10 th C ir. 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 Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 910 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

nece ssary content of a grievance)

. I n the complaint, Mr. Dawson alleged that Mr. Frickey had disregarded pain complaints at a medical appointment

. But the first grievance had preceded th e appointment with Mr. Frickey

. So that grievance couldn’t alert anyone t o 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 d idn’t bear on Mr. Dawson’s allegations about Mr. Frickey. In the third grievance, Mr. Dawson had complain ed of his inability to get a new treatment being given to other inmates. Again, the grievance hadn’t mention ed anything that Mr. Frickey did or didn’t do. Considered s eparately 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, Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 1011 the district court didn’t err in granting summary judgment to Mr. Frickey. He could n’t incur liability because Mr. Dawson hadn’t exhausted available administrative remedies.

Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 21-1307 Document: 010110764402 Date Filed: 11/07/2022 Page: 11