UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

THE ESTATE OF JAMES ROEMER, 

 Plaintiff - Appellant, 

v. 

DAVID JOHNSON, in his individual 

capacity; NATHAN ALGIEN, in his 

individual capacity; THOMAS BOYER, in 

his individual capacity; CHASE FELZEIN, 

in his individual capacity; ALI SHOAGA, 

in his individual capacity, 

 Defendants - Appellees. 

No. 17-1418 

(D.C. No. 1:14-CV-01655-PAB-NYM) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, McKAY, and MORITZ, Circuit Judges. 

_________________________________ 

 This appeal arises from the June 13, 2012 murder of James Roemer at the 

hands of his cellmate, Paul Farley. 

Just shy of the two-year anniversary of Roemer’s death, his estate (the Estate) 

brought suit against several prison officials (the defendants) under 42 U.S.C. § 1983, 

alleging that they violated Roemer’s Eighth Amendment rights by displaying 

 * This order and judgment isn’t binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. But it may be cited for its 

persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 7, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

deliberate indifference to the substantial risk of serious harm that Farley posed to 

Roemer’s safety. The defendants then moved for summary judgment, arguing that the 

Estate’s claims against them were time-barred under the applicable two-year statute 

of limitations. Specifically, the defendants asserted that the Estate’s claims accrued 

approximately ten days before Roemer’s death—i.e., on or about June 3, 2012—and 

that the statute of limitations therefore expired approximately nine days before the 

Estate filed its June 12, 2014 complaint. 

The district court agreed and granted summary judgment to the defendants. 

But in doing so, the district court erred: in determining when the Estate’s claims 

against the defendants accrued, it evaluated those claims collectively, rather than 

individually. Instead, the district court should have separately analyzed when the 

Estate’s claim against each individual defendant accrued. See Vasquez v. Davis, 882 

F.3d 1270, 1276 (10th Cir. 2018).

In light of this error, the only remaining question before us is whether the 

defendants have shown that under the individualized approach our cases demand, the 

Estate’s claims against each of the defendants accrued more than two years before the 

Estate brought its claims. With one exception, we hold that the defendants fail to 

make this showing. Accordingly, we affirm in part, reverse in part, and remand for

further proceedings.1

 

 1

 In doing so, we need not and do not decide when the Estate’s claims accrued. 

We hold only that, with one exception, the defendants fail to demonstrate those 

claims accrued more than two years before the Estate filed suit against them. See 

Robert L. Kroenlein Tr. ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1274 (10th Cir. 
3 

Background

 Farley murdered Roemer while the two men were incarcerated together at the 

Sterling Correctional Facility (SCF) in Sterling, Colorado.2

 Farley came to SCF by 

way of Arizona, where he spent several years in the custody of the Arizona 

Department of Corrections (ADOC). 

In advance of Farley’s transfer, ADOC Case Manager Herb Haley sent a letter 

to the Colorado Department of Corrections (CDOC) detailing Farley’s “extensive 

disciplinary history.” App. vol. 5, 1316. Thus, CDOC was aware of that history when 

Farley came into its custody in July 2011. In particular, Haley’s letter relayed that 

Farley (1) sexually assaulted a previous cellmate with a lethal weapon; (2) helped an 

inmate in another cell commit suicide by strangling that inmate “with a braided 

[bedsheet] that was passed through the cell vents”; (3) admitted to attempting to 

secure placement in protective segregation so he could kill another inmate housed 

there; (4) used force to escape custody during transport; and (5) made statements 

such as, “I just want to do somebody,” and “I want to put steel in someone.” App. 

vol. 2, 467. 

 

2014) (“The statute of limitations is an affirmative defense, so the defendant, as the 

moving party, bears the burden of demonstrating that there is no material fact in 

dispute on the issue of whether the statute of limitations bars the claim.” (citations 

omitted)).

2

 We take the bulk of these historical facts from the district court’s orders 

granting summary judgment. We view those facts in the light most favorable to the 

Estate as the nonmoving party. See Knopf v. Williams, 884 F.3d 939, 946 (10th Cir. 

2018). We also resolve all factual disputes and draw all reasonable inferences in its 

favor. See id.
4 

Notably, Haley’s letter acknowledged the possibility that Farley made these 

last statements in an effort “to ensure a single cell.” Id. But given Farley’s violent 

history, Haley concluded that Farley “clearly [constituted] a threat to[] other 

inmates”—a conclusion that found additional support in other documents that ADOC 

submitted to CDOC in anticipation of Farley’s transfer. Id. For instance, ADOC 

provided CDOC with a disciplinary report describing an incident in which Farley 

sliced a cellmate’s back open with “what appeared to be a razor blade.” App. vol. 3, 

647. 

After receiving this information, CDOC scheduled a hearing to determine 

whether it should house Farley in administrative segregation or instead place him 

with the general prison population. The notice for that placement hearing expressly 

acknowledged both Farley’s “extensive” history of violent behavior and the “threat” 

that Farley “pose[d] . . . to the safety and security of . . . other offenders.” App. vol. 

2, 477. 

Case Manager Ali Shoaga chaired the three-person committee that conducted 

the placement hearing. Prior to the hearing, Shoaga reviewed the materials provided 

by ADOC, including Haley’s letter. And Shoaga later admitted that he “was aware” 

at the time of the hearing that Farley “posed more than a low risk.” App. vol. 5, 1318. 

Nevertheless, on September 1, 2011, Shoaga recommended placing Farley with the 

general prison population rather than in administrative segregation. David Johnson, 

an associate warden with the Denver Reception and Diagnostic Center, approved 
5 

Shoaga’s recommendation the next day. And Offender Services Classification Officer 

Nathan Algien then reviewed the ADOC materials and assigned Farley to SCF. 

On September 22, 2011, CDOC transferred Farley to SCF and placed him in 

general population, where he “was required to have a cellmate.” Id. at 1319. 

Approximately nine months later, Corrections Officer Thomas Boyer and Housing 

Lieutenant Chase Felzein approved a request from Farley and Roemer in which the 

two men asked to share a cell. At that point, the Estate alleges, Roemer was “serving 

a two-year sentence for trespassing and was due to be released within months.” Aplt. 

Br. 2. 

As the Estate would later discover, CDOC had in place a policy that governed 

requests for such “convenience moves.” App. vol. 2, 336. Generally speaking, that 

policy warned against housing “aggressive” offenders with “at risk” offenders. Id.

For instance, the policy stated that prison officials should not “allow an inmate doing 

a short sentence [to] live with an inmate doing a long sentence.” Id. Similarly, it 

warned against housing “[o]ffenders [who] exhibit Sexual Aggressive Behaviors 

(SAB)” with “offenders identified as Sexual Vulnerability at Risk (SVR).” Id. 

Despite these warnings, and despite the fact that both Boyer and Felzein were 

allegedly aware of Farley’s history, Boyer and Felzein assigned Roemer and Farley 

to share a cell. Shortly thereafter, Roemer began to fear that Farley posed a threat to 

his safety. In particular, the district court found that “[b]y March 25, 2012, [Roemer] 

believed that [Farley] was a murderer and [had] expressed concerns about his safety” 

to his mental-health provider. App. vol. 5, 1328. The district court also found that, 
6 

“[s]hortly thereafter, [Farley] aggressively pinned [Roemer] against the wall of his 

cell and asked, ‘Don’t you know what I could do to you?’” Id. at 1328–29 (quoting 

App. vol. 3, 771). Subsequently, on or about June 3, 2012, Roemer informed Boyer 

of his safety concerns and requested a cell reassignment. Boyer immediately denied 

Roemer’s request. Approximately ten days later, on June 13, 2012, Farley strangled 

Roemer to death in the cell that the two men shared. 

 Almost two years after Roemer’s murder, the Estate filed its initial complaint 

naming 17 defendants, including Felzein, Boyer, and Shoaga.3

 It did not name 

Johnson or Algien. In relevant part, the Estate’s June 12, 2014 complaint alleged that 

Felzein, Boyer, and Shoaga violated the Eighth Amendment by displaying deliberate 

indifference to the substantial risk of serious harm that Farley posed to Roemer’s 

safety. 

Felzein, Boyer, and Shoaga moved to dismiss, arguing that the complaint 

failed to state a claim and that they were entitled to qualified immunity. The district 

court denied the motion as to Shoaga. But it granted the motion to dismiss as to 

Felzein and Boyer. Notably, in doing so, the district court explained that to 

adequately plead its Eighth Amendment claims, the Estate was “required to allege 

that each defendant personally participated in the alleged constitutional violation and 

that each defendant acted or failed to act in spite of subjective awareness of a 

substantial risk of serious harm.” App. vol. 1, 141 (emphases added). And the court 

 3

 Of the claims the Estate identified in its initial complaint, only the claims 

against Felzein, Boyer, and Shoaga are at issue in this appeal. 
7 

then chastised the Estate for failing to “identify[] specific allegations supporting [the 

Estate’s] claim against each individual defendant.” Id. (emphasis added). 

 After the district court dismissed the claims against Felzein and Boyer, the 

Estate proceeded to conduct discovery regarding its remaining claim against Shoaga. 

Based on the information it obtained during the course of that discovery, the Estate 

then moved to file an amended complaint that (1) asserted new Eighth Amendment 

claims against Johnson and Algien and (2) repleaded the Estate’s Eighth Amendment 

claims against Felzein and Boyer. The district court granted the Estate’s motion for 

leave to amend, and the Estate filed its amended complaint on April 7, 2017. 

In the meantime, Shoaga moved for summary judgment. As relevant here, he 

argued that the Estate’s claim against him was barred by the applicable two-year 

statute of limitations. Specifically, Shoaga asserted that the Estate’s claim accrued as 

soon as Roemer knew or should have known that his Eighth Amendment rights were 

violated. And Shoaga further alleged that Roemer had this information on or about 

June 3, 2012—the date upon which (1) Roemer informed Boyer of his safety 

concerns and requested a cell reassignment and (2) Boyer denied that request. Thus, 

Shoaga maintained, the Estate’s June 12, 2014 complaint came nine days too late. 

The district court agreed and granted summary judgment to Shoaga. Johnson, 

Algien, Felzein, and Boyer then moved for summary judgment, incorporating by 

reference Shoaga’s statute-of-limitations argument. The Estate opposed their motion 

for summary judgment and also asked the district court to reconsider its earlier order 

granting summary judgment to Shoaga. 
8 

The district court denied the Estate’s motion to reconsider. And it 

determined—after applying the same analysis it applied to the Estate’s claim against 

Shoaga—that the Estate’s claims against the remaining defendants were likewise 

time-barred. Thus, the district court granted the remaining defendants’ motion for 

summary judgment and entered judgment in favor of all five defendants. The Estate 

appeals. 

Analysis 

The Estate argues that the district court erred in treating its claims as timebarred and in granting summary judgment to the defendants on that basis. In support, 

the Estate advances three arguments. First, it asserts that the district court erred in 

failing to separately analyze when the Estate’s claims against each individual 

defendant accrued. Second, the Estate argues that under such an individualized 

approach, the defendants failed to demonstrate that the Estate’s claims against each 

of the individual defendants accrued more than two years before the Estate filed suit 

against them. Third, the Estate argues that even assuming it filed suit more than two 

years after its claims accrued, it is nevertheless entitled to equitable tolling. We 

review the Estate’s first two arguments de novo. See Nelson v. State Farm Mut. Auto. 

Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005); McKnight v. Kimberly Clark Corp., 

149 F.3d 1125, 1128 (10th Cir. 1998). To the extent we reach the Estate’s third 

argument, we review only for abuse of discretion. See Chance v. Zinke, 898 F.3d 

1025, 1034 (10th Cir. 2018). 
9 

I. The Test for Accrual 

In granting the defendants’ motions for summary judgment, the district court 

first determined that the Estate’s Eighth Amendment claim against one of the 

defendants accrued more than two years before the Estate filed suit. And it then 

reasoned that the Estate’s Eighth Amendment claims against all of the defendants 

therefore did so as well. But according to the Estate, our recent decision in Vasquez 

v. Davis, 882 F.3d 1270 (10th Cir. 2018), expressly forecloses such a collective 

approach to the accrual analysis. Instead, the Estate asserts, Vasquez requires an 

individualized assessment of each of the Estate’s claims against each of the separate 

defendants. See 882 F.3d at 1276 (holding that plaintiff’s Eighth Amendment claims 

“accrued . . . separately for each of the[] [d]efendants”). For the reasons discussed 

below, we agree with the Estate. 

In Vasquez—which we decided after the district court entered judgment in this 

case but before the parties filed their opening briefs—the plaintiff alleged that five 

CDOC medical providers (Jeanne Davis, Brian Webster, Kathleen Melloh, Gatbel 

Chamjock, and Maurice Fauvel) violated his Eighth Amendment rights by displaying 

deliberate indifference to his serious medical needs. See 882 F.3d at 1272–74. The 

district court granted summary judgment to Davis, Webster, Melloh, and Chamjock, 

concluding that because the plaintiff brought suit more than two years after his 

claims against them accrued, those claims were untimely under the applicable twoyear statute of limitations. And the district court granted summary judgment to 

Fauvel as well, ruling that the plaintiff failed to show Fauvel acted with deliberate 
10 

indifference. We affirmed in both respects. Id. at 1272. Critically, in affirming the 

district court’s statute-of-limitations ruling, we mapped out the analytical path a court 

must follow in determining when claims like the ones at issue here accrue. See id. at 

1275–76. 

We began by citing the general principle that a plaintiff’s claims accrue once 

he or she can “file[] suit and obtain[] relief.” Id. at 1276; see also Wallace v. Kato, 

549 U.S. 384, 388 (2007) (explaining that plaintiff’s claim accrues “when the 

plaintiff has ‘a complete and present cause of action’” (quoting Bay Area Laundry & 

Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997))).4

Notably, a plaintiff doesn’t have a complete cause of action unless and until he or she 

“knows or has reason to know of the injury” that forms the basis of that action. Baker 

v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). And as Vasquez recognizes, for 

purposes of a § 1983 claim, the relevant “injury” is the alleged constitutional 

violation. Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154 (10th 

Cir. 1998); see also Vasquez, 882 F.3d at 1276. Thus, a § 1983 claim accrues “when 

the plaintiff knows or should know that his or her constitutional rights have been 

violated.” Smith, 149 F.3d at 1154 (quoting Lawshe v. Simpson, 16 F.3d 1475, 1478 

 4

 At oral argument, the defendants asserted—without support—that the date 

upon which a § 1983 claim accrues is different from the date upon which a plaintiff 

can adequately plead that claim. We disagree. Although it may “theoretically [be] 

possible for a statute to create a cause of action that accrues at one time for the 

purpose of calculating when the statute of limitations begins to run, but at another 

time for the purpose of bringing suit, we will not infer such an odd result in the 

absence of any such indication in the statute.” Bay Area Laundry, 522 U.S. at 201 

(quoting Reiter v. Cooper, 507 U.S. 258, 267 (1993)). 
11 

(7th Cir. 1994)); see also id. (explaining that to determine when § 1983 claim 

accrues, court must first “identify the constitutional violation and locate it in time” 

(quoting Lawshe, 16 F.3d at 1478)). 

We next explained in Vasquez that a plaintiff who brings a constitutional claim 

under § 1983 can’t obtain relief without first satisfying the personal-participation 

requirement. That is, the plaintiff must demonstrate the defendant “personally 

participated in the alleged constitutional violation” at issue.5

 882 F.3d at 1275. 

Indeed, because § 1983 is a “vehicle[] for imposing personal liability on government 

officials, we have stressed the need for careful attention to particulars, especially in 

 5

 A plaintiff’s failure to satisfy this requirement will trigger swift and certain 

dismissal. See, e.g., Welch v. Saunders, 720 F. App’x 476, 479 (10th Cir. 2017) 

(unpublished) (citing personal-participation requirement and affirming order 

dismissing plaintiffs’ § 1983 claims because their complaint failed to include 

sufficient “particulars”); Lewis v. Clark, 663 F. App’x 697, 703 (10th Cir. 2016) 

(unpublished) (“The district court ruled that [plaintiff’s] complaint fails to state any 

individual-capacity claim against [defendant] . . . because [plaintiff] didn’t allege any 

personal participation by [defendant] in any of the alleged constitutional violations 

. . . . We discern no error in the district court’s analysis . . . .”); Sherman v. Klenke, 

653 F. App’x 580, 590–91 (10th Cir. 2016) (unpublished) (“The district court 

properly dismissed [plaintiff’s] Eighth Amendment claim against [defendant] because 

the complaint fails to sufficiently allege [defendant’s] personal participation in the 

alleged constitutional violation.”). In fact, we have gone so far as to suggest that 

failure to satisfy the personal-participation requirement will not only justify dismissal 

for failure to state a claim; it will render the plaintiff’s claim frivolous. See, e.g., 

Esnault v. Suthers, 24 F. App’x 854, 855–56 (10th Cir. 2001) (unpublished) 

(affirming district court’s order dismissing complaint as frivolous where “complaint 

fail[ed] to demonstrate sufficient facts showing how each individual defendant 

participated in the alleged violation of [plaintiff’s] constitutional rights”; noting that 

personal-participation showing “is essential to a § 1983 action”). That is, we have 

indicated that such allegations don’t even give rise to an “arguable,” albeit ultimately 

“unsuccessful,” claim; instead, such a claim is “so defective that [it] should never 

have been brought at the outset.” Neitzke v. Williams, 490 U.S. 319, 328–29 (1989). 
12 

lawsuits involving multiple defendants.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th 

Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) 

(explaining that when plaintiff brings § 1983 claims against multiple defendants, “it 

is particularly important . . . that the complaint make clear exactly who is alleged to 

have done what to whom”); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532–33 

(10th Cir. 1998)) (holding that district court’s analysis of plaintiff’s § 1983 claims 

was “infirm” where district court “lump[ed]” together plaintiff’s claims against 

multiple defendants—“despite the fact that each of the defendants had different 

powers and duties and took different actions with respect to [plaintiff]”—and “wholly 

failed to identify specific actions taken by particular defendants that could form the 

basis of [a constitutional] claim”). 

We then pointed out in Vasquez that an Eighth Amendment deliberateindifference claim has both an objective and a subjective component. 882 F.3d at 

1275; see also Farmer v. Brennan, 511 U.S. 825, 833–34, 837 (1994) (explaining 

that prison officials violate prisoner’s Eighth Amendment right to be free “from 

violence at the hands of other prisoners” when (1) inmate is “incarcerated under 

conditions posing a substantial risk of serious harm” from another inmate or inmates 

and (2) those prison officials are deliberately indifferent to relevant risk—that is, 

they “know[] of and disregard[] an excessive risk to inmate health or safety”).

Next, we combined the personal-participation requirement with the deliberateindifference test and concluded that, in order “[t]o recover as to a particular

[d]efendant,” the plaintiff in Vasquez would ultimately be required “to prove as to 
13 

that [d]efendant both an objective and a subjective element of his claim.” 882 F.3d at 

1275 (emphases added). And we reasoned that “[t]o prove the subjective element of 

his claim,” the plaintiff therefore “had to show for each . . . [d]efendant that such

[d]efendant” was aware of and disregarded a substantial risk of serious harm. Id.

(emphases added). 

Finally, we combined (1) the general test for accrual, (2) the personalparticipation requirement, and (3) the elements of a deliberate-indifference claim to 

formulate the applicable framework for determining when the plaintiff’s claims in 

Vasquez accrued. Specifically, we said: 

In light of the objective and subjective elements of [the plaintiff’s] 

Eighth Amendment claims, those claims accrued when he “knew or had 

reason to know[,]” separately for each of these [d]efendants—Davis, 

Webster, Chamjock[,] and Melloh—to be liable, that they had acted 

with deliberate indifference to a known risk to [the plaintiff’s] medical 

needs . . . . 

Id. (second alteration in original) (emphasis added) (citation omitted) (quoting Mata 

v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011)). 

Perhaps even more important than what we said in Vasquez, though, is what 

we didn’t say—or rather, what we didn’t do. We did not (as the district court did 

here) simply determine the earliest date upon which the plaintiff could have brought 

his Eighth Amendment claim against any defendant and then conclude that the 

plaintiff’s Eighth Amendment claims against all of the defendants necessarily 

accrued on that same date. This much is clear from our analysis of the plaintiff’s 

claim against Fauvel, the fifth and final medical provider at issue in Vasquez. 
14 

In Vasquez, the plaintiff brought suit against all five medical providers

(including Fauvel) in May 2014. See 882 F.3d at 1275. We concluded that the 

plaintiff’s deliberate-indifference claims against the other four medical providers 

accrued no later than February 2012. Id. at 1276. Thus, if the date upon which a 

plaintiff’s deliberate-indifference claim accrues against any one defendant is the date 

upon which that plaintiff’s deliberate-indifference claims accrue against all 

defendants (as the district court here suggested), then we would have concluded that 

the plaintiff’s claim against Fauvel was also time-barred. That is, we would have 

concluded that the claim against Fauvel likewise accrued no later than February 

2012, thus rendering the plaintiff’s May 2014 complaint untimely as to Fauvel. 

But we didn’t take this approach. On the contrary, we explained that the 

plaintiff’s claim against Fauvel was “different.” Id. at 1277. In particular, we pointed 

out that “almost all of Fauvel’s interactions with [the plaintiff] occurred within the 

two-year period immediately preceding his filing this suit.” Id. Thus, we concluded, 

“Fauvel’s deliberate indifference as part of these interactions would support a timely 

claim against him.” Id. (emphasis added). And in doing so, we necessarily recognized 

that when a plaintiff brings § 1983 claims against multiple defendants, the analysis 

for determining when the plaintiff’s claims accrued as to each of those defendants is 

an individualized one. Thus, the Estate alleges, the district court erred in failing to 

perform that individualized assessment here. 

The defendants lodge two objections to the Estate’s reading of Vasquez. First, 

they assert that to the extent we “made reference to determining a date of accrual 
15 

‘separately’” for each defendant in Vasquez, we did so only because Davis, Webster, 

Melloh, and Fauvel “were represented by [one] attorney,” while Chamjock “was 

represented by” another. Aplee. Br. 35 (quoting Vasquez, 882 F.3d at 1276). 

According to the defendants, these two different attorneys “asserted different dates of 

accrual” in their briefing below, thus explaining why we didn’t apply a single accrual 

analysis to all of the plaintiff’s claims in Vasquez. Id. 

But the defendants fail to identify any textual support for this novel 

interpretation of Vasquez, and we see none. In particular, our analysis in Vasquez

makes no mention of the defendants’ different attorneys. Nor does it reference their 

allegedly disparate theories regarding when the claims against their respective clients 

accrued. What’s more, we generally discussed Davis, Webster, Melloh, and 

Chamjock together and then separately addressed Fauvel—despite the fact that it was 

Chamjock, rather than Fauvel, who was represented by a different attorney. See 

Vasquez, 882 F.3d at 1272, 1275–79. We therefore reject the defendants’ argument 

that this procedural irregularity drove the result in Vasquez. 

Alternatively, the defendants assert that even assuming Vasquez supports the 

Estate’s position, our decision in Vasquez could not and did not “overturn” our earlier 

decisions in Alexander v. Oklahoma, 382 F.3d 1206 (10th Cir. 2004), and Baker, 991 

F.2d 628. Aplee. Br. 34; see also United States v. Burns, 800 F.3d 1258, 1261 n.6 

(10th Cir. 2015) (“[A] panel of this court cannot overrule a prior panel’s 

decision . . . .”). But neither Alexander nor Baker addresses (1) the personalparticipation requirement or (2) the subjective component of an individual-liability 
16 

deliberate-indifference claim, let alone explains how these considerations impact the 

accrual analysis when a plaintiff asserts that multiple defendants were deliberately 

indifferent in different ways and on different dates. Our decision in Vasquez, on the 

other hand, does. Thus, Vasquez controls our analysis. See Webster v. Fall, 266 U.S. 

507, 511 (1925) (“Questions [that] merely lurk in the record, neither brought to the 

attention of the court nor ruled upon, are not to be considered as having been so 

decided as to constitute precedents.”); Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 

1073, 1084 (10th Cir. 2011) (“It is elementary that an opinion is not binding 

precedent on an issue it did not address.”). 

In short, Vasquez unequivocally and expressly holds that when a plaintiff 

brings deliberate-indifference claims against multiple defendants in a § 1983 action, 

those claims may accrue “separately for each of th[o]se [d]efendants,” depending on 

when the plaintiff knew or had reason to know that each of those defendants acted 

with deliberate indifference, i.e., that each of those defendants knew of and 

disregarded a substantial risk of serious harm. Id. 

This holding is entirely consistent with the earlier binding authority we cite 

above. See Wallace, 549 U.S. at 388; Farmer, 511 U.S. at 834, 837; Pahls, 718 F.3d 

at 1225; Robbins, 519 F.3d at 1250; Tonkovich, 159 F.3d at 532–33; Smith, 149 F.3d 

at 1154. What’s more, it’s consistent with the Third Circuit’s recent decision Mullin 

v. Balicki, 875 F.3d 140 (3d Cir. 2017)—a case with facts that are remarkably similar 

to those before us here. 
17 

In Mullin, the Third Circuit indicated that when a plaintiff alleges multiple 

defendants violated the plaintiff’s Eighth Amendment rights by acting with deliberate 

indifference on different dates and in different ways, the plaintiff’s claims against 

each of those various defendants may well accrue on different dates, depending on 

when the plaintiff knew or should have known “of the elements comprising [each] 

separate injury.” 875 F.3d at 158–60. More specifically, the Third Circuit noted that 

the plaintiff’s claims against the defendants named in her initial complaint “stemmed 

from a different [and earlier] asserted injury” than the plaintiff’s claim against a 

different defendant whom she named in her subsequent proposed amended complaint. 

And because the plaintiff “could not have learned of the particular nature of this 

[later constitutional violation]—or who was at fault—until” less than two years 

before she attempted to amend her complaint, the Third Circuit held that her “attempt 

to amend therefore fell well within the applicable two-year limitations period.” Id. at 

159. 

Notably, that is precisely the scenario before us in this appeal. That is, the 

Estate doesn’t allege that all of the defendants were deliberately indifferent when, on 

the same date, they all participated in the decision to house Farley with the general 

prison population, rather than in administrative segregation. Nor does the Estate 

allege that all of the defendants were deliberately indifferent when, on the same date, 

they all participated in assigning Roemer and Farley to the same cell. Instead, the 

Estate alleges that (1) Shoaga was deliberately indifferent when, on September 1, 

2011, he recommended housing Farley with the general prison population; 
18 

(2) Johnson was deliberately indifferent when, on September 2, 2011, he ratified 

Shoaga’s placement recommendation; (3) Algien was subsequently deliberately 

indifferent in assigning Farley to SCF; (4) Felzein was deliberately indifferent when, 

approximately nine months after Farley arrived at SCF, Felzein agreed to allow 

Farley and Roemer to share a cell; and (5) Boyer was deliberately indifferent in both 

agreeing to allow Farley and Roemer to share a cell and in subsequently denying 

Roemer’s request for a cell reassignment on or about June 3, 2012. 

Under these circumstances, the district court was required to separately 

analyze when the Estate’s claims against each of these defendants accrued. See

Vasquez, 882 F.3d at 1276 (holding that, “[i]n light of the objective and subjective 

elements of [plaintiff’s] Eighth Amendment claims, those claims accrued when he 

‘knew or had reason to know[,]’ separately for each of the[] [d]efendants . . . , that 

they had acted with deliberate indifference to a known risk to [plaintiff’s] medical 

needs” (third alteration in original) (citation omitted)); Mullin, 875 F.3d at 158–60;

cf. Tonkovich, 159 F.3d at 532 (holding that district court’s analysis of plaintiff’s 

constitutional claims was “infirm because it lump[ed] all of [the defendants] together 

despite the fact that each of the defendants had different powers and duties and took 

different actions with respect to [plaintiff]”). 

But the district court failed to do so. Instead, it reasoned that the Estate’s 

claims all accrued on or about June 3, 2012—i.e., the date upon which (1) Roemer 

informed Boyer of his safety concerns and requested a cell reassignment and 

(2) Boyer denied that request. By then, the district court deduced, Roemer “knew that 
19 

[Farley] posed an objectively serious risk to [Roemer’s] safety.” App. vol. 5, 1329. 

And “Roemer also knew or had reason to know that prison officials disregarded the 

risk to his safety because [Boyer] immediately denied [Roemer’s] request to be 

moved out of the cell.” Id. (emphasis added). 

In applying this collective approach to the accrual analysis, rather than the 

individualized assessment our cases require, the district court erred. Thus, we must 

next determine whether, under the appropriately individualized inquiry set forth 

above, the defendants have demonstrated that the Estate’s claims against them 

accrued more than two years before the Estate filed those claims. See Colo. Rev. Stat. 

§ 13-80-102 (setting forth applicable statute of limitations); Robert L. Kroenlein Tr., 

764 F.3d at 1274 (explaining that defendant bears burden of demonstrating that 

statute of limitations bars plaintiff’s claims). 

II. Applying Vasquez’s Individualized Approach

 Notably, the defendants make no effort to establish that, under the 

individualized approach we outline above, the Estate’s claims against Shoaga, 

Johnson, Algien, or Felzein accrued more than two years before the Estate brought 

suit against them. Instead, the defendants merely double down on their initial 

assertion that the Estate’s claims against these four defendants accrued when Roemer 

knew or should have known that Boyer knew of and disregarded the substantial risk 

of harm that Farley posed. For the reasons discussed above, we reject this argument. 

And because we see no indication that Shoaga, Johnson, Algien, or Felzein are 

entitled to summary judgment under the individualized accrual analysis our caselaw 
20 

requires, we reverse the district court’s orders granting summary judgment to Shoaga, 

Johnson, Algien, and Felzein.

 That leaves only the district court’s order granting summary judgment to 

Boyer. In asking us to reverse that order as well, the Estate cites CDOC’s policy 

governing convenience moves, argues that Boyer violated this policy by allowing 

Roemer and Farley to live together, and notes that this policy only surfaced “[d]uring 

the course of discovery conducted in this matter.” Aplt. Br. 6. Further, the Estate 

points out, the district court initially dismissed its claim against Boyer for failure to 

state a claim. And according to the Estate, it wasn’t until the Estate identified 

CDOC’s policy that the district court “permitted [its] claim against Boyer to 

proceed.” Id. at 26. Thus, the Estate maintains, its claim against Boyer necessarily 

didn’t accrue until the policy was or should have been discovered. See Wallace, 549 

U.S. at 388 (holding that claim accrues “when the plaintiff has ‘a complete and 

present cause of action,’”—i.e., “when ‘the plaintiff can file suit and obtain relief’” 

(quoting Bay Area Laundry, 522 U.S. at 201)). 

But the Estate’s argument mischaracterizes the basis for the district court’s 

initial ruling dismissing the Estate’s claim against Boyer. In dismissing that claim, 

the district court noted the Estate failed to allege that when Roemer asked Boyer for a 

cell reassignment, Roemer “provided [Boyer] with a reason for his request.” App. 

vol. 1, 132. Thus, the district court dismissed the Estate’s claim against Boyer not 

because the Estate failed to allege facts showing that Boyer violated CDOC policy in 

allowing Roemer and Farley to share a cell, but because the Estate failed to allege 
21 

that Boyer was subjectively aware, when he later denied Roemer’s reassignment 

request, that Farley posed a substantial risk of serious harm to Roemer’s safety. See

Farmer, 511 U.S. at 829 (holding that prison official cannot be deliberately 

indifferent to substantial risk of serious harm unless that “official was subjectively 

aware of the risk”). Later, however, the Estate alleged that Roemer informed Boyer 

“he could not live with [Farley] due to safety concerns.” App. vol. 3, 765 (emphasis 

added). And regardless of whether the district court relied on this new allegation in 

subsequently allowing the Estate to replead its claim against Boyer, this allegation is 

sufficient to establish that on or about June 3, 2012, Roemer knew or should have 

known that Boyer knew of and disregarded the substantial risk of serious harm that 

Farley posed to Roemer’s safety. Accordingly, Roemer’s claim against Boyer 

accrued on or about that date. 

Nevertheless, that doesn’t automatically entitle Boyer to summary judgment 

on statute-of-limitations grounds. Instead, according to the Estate, the doctrine of 

equitable tolling operates to render timely its claim against Boyer. See Morrison v. 

Goff, 91 P.3d 1050, 1053 (Colo. 2004) (“Courts apply the doctrine of equitable 

tolling to suspend a statute of limitations period when ‘flexibility is required to 

accomplish the goals of justice.’ For example, we have tolled the statute of 

limitations when plaintiffs did not timely file their claims because of ‘extraordinary 

circumstances’ or because defendants’ wrongful conduct prevented them from doing 

so.” (citation omitted) (quoting Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 
22 

1094, 1096–97 (Colo. 1996))). We therefore turn next to the Estate’s equitabletolling argument. 

III. Equitable Tolling

In its third and final argument, the Estate asserts that “[Roemer] and [the] 

Estate are entitled to tolling during the period that would have been available to 

Roemer, had he not been murdered, to pursue his administrative remedies.” Aplt. Br. 

28 (citing Roberts v. Barreras, 109 F. App’x 224, 226 (10th Cir. 2004) (unpublished) 

(“Every circuit to address the issue has held that the filing of a mandatory 

administrative grievance tolls the statute of limitations for § 1983 . . . claims.”)). 

 But in advancing this argument, the Estate fails to “cite the precise reference[] 

in the record where the [argument] was raised and ruled on” below. 10th Cir. R. 

28.1(A). Further, the Estate fails to make a plain-error argument. This presents a 

problem. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) 

(“[T]he failure to argue for plain error and its application on appeal . . . marks the end 

of the road for an argument for reversal not first presented to the district court.”). But 

the bigger problem is that the Estate did raise this argument below. Specifically, it 

raised its tolling argument for the first time in its motion to reconsider the district 

court’s order granting summary judgment to Shoaga. Thus, the district court treated 

the argument as waived and declined to consider it. See Servants of Paraclete v. 

Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (noting that motion to reconsider is 

“inappropriate vehicle[]” in which to advance new arguments that litigant could have 

presented previously). 
23 

Because the Estate fails to acknowledge—let alone challenge—the district 

court’s waiver ruling, the Estate necessarily fails to demonstrate the district court 

abused its discretion in declining to equitably toll the statute of limitations. See Nixon 

v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (noting that appellant 

cannot prevail on appeal “if the reasons that were given by the district court” for 

rejecting an argument “go unchallenged”; instead, appellant must “explain what was 

wrong with the reasoning that the district court relied on in reaching its decision”). 

And because that means the district court’s equitable-tolling ruling stands on appeal, 

see id. at 1369, we conclude that the Estate’s claim against Boyer is time-barred. We 

therefore affirm the district court’s order granting summary judgment to Boyer. 

Conclusion 

 For the reasons discussed above, the district court erred in concluding that the 

Estate’s claims against all the defendants were time-barred without first asking when 

the Estate’s claims against each defendant accrued. Further, with the exception of 

Boyer, the defendants fail to demonstrate that under such an individualized approach, 

the Estate’s claims accrued more than two years before it filed suit. Accordingly, 

although we affirm the district court’s order granting summary judgment to Boyer, 

we reverse the district court’s orders granting summary judgment to Shoaga, 

Johnson, Algien, and Felzein and remand to the district court for further proceedings 
24 

on the Estate’s claims against them. 

 Entered for the Court 

Nancy L. Moritz 

Circuit Judge