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

November 7, 2022

Christopher M. Wolpert

Clerk of Court

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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. 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 appeal 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. 

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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, 

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 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). 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 Procedure 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 

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F.3d 1416, 1422 (10th Cir. 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 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 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 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.

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 

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version of Rule 3, 1 we’d still lack jurisdiction over the appellate arguments 

involving defendants Archambeau, Tiona, 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 remaining 

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 designate “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. See 

R. vol. 5 at 470–71. 

1 We’d apply the new rule if its application would be just and 

practicable. Order (Roberts, C.J.) (Apr. 14, 2021).

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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 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.

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.

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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). 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 (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 

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). 

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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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