FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          March 7, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 THE ESTATE OF JAMES ROEMER,

       Plaintiff - Appellant,

 v.                                                          No. 17-1418
                                                (D.C. No. 1:14-CV-01655-PAB-NYM)
 DAVID JOHNSON, in his individual                             (D. Colo.)
 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.
                      _________________________________

                             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.
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, 

, 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, 

, 1274 (10th Cir.
                                            2
                                     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, 

, 946 (10th Cir.
2018). We also resolve all factual disputes and draw all reasonable inferences in its
favor. See 

Haley’s letter acknowledged the possibility that Farley made these

last statements in an effort “to ensure a single cell.” 

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. 

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



                                             4
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.” 

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. 

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

a short sentence [to] live with an inmate doing a long sentence.” 

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

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

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,

                                            5
“[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?’” 

(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.
                                              6
then chastised the Estate for failing to “identify[] specific allegations supporting [the

Estate’s] claim against each individual defendant.” 

      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.

                                            7
       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 time-

barred 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., 

, 1119 (10th Cir. 2005); McKnight v. Kimberly Clark Corp.,

, 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, 

, 1034 (10th Cir. 2018).



                                            8
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, 

(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. 

(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. 

–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 two-

year 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

                                            9
indifference. We affirmed in both respects. 

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 

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

he or she can “file[] suit and obtain[] relief.” 

see also Wallace v. Kato,

, 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., 

, 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, 

, 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, 

, 1154 (10th

Cir. 1998); see also 

. Thus, a § 1983 claim accrues “when

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

violated.” 

(quoting Lawshe v. Simpson, 

, 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 

(quoting Reiter v. Cooper, 

, 267 (1993)).
                                           10
(7th Cir. 1994)); see also 

to determine when § 1983 claim

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

(quoting 

)).

      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 

.

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, 

, 328–29 (1989).
                                           11
lawsuits involving multiple defendants.” Pahls v. Thomas, 

, 1225 (10th

Cir. 2013); see also Robbins v. Oklahoma, 

, 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, 

, 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 deliberate-

indifference claim has both an objective and a subjective 

; see also Farmer v. Brennan, 

, 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 deliberate-

indifference 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

                                           12
that [d]efendant both an objective and a subjective element of his 

(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. 

      Finally, we combined (1) the general test for accrual, (2) the personal-

participation 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 . . . .

in original) (emphasis added) (citation omitted) (quoting Mata

v. Anderson, 

, 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.


                                           13
      In Vasquez, the plaintiff brought suit against all five medical providers

(including Fauvel) in May 2014. 

. We concluded that the

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

accrued no later than February 2012. 

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.” 

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.” 

concluded,

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

claim against him.” 

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

                                            14
‘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 

).

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. 

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

, 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, 

(10th Cir. 2004), and Baker, 

. Aplee. Br. 34; see also United States v. Burns, 

, 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 personal-

participation requirement or (2) the subjective component of an individual-liability

                                            15
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, 

, 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, 

, 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. 

is entirely consistent with the earlier binding authority we cite

above. See 

; 

, 837; 

; 

; 

–33; 

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

v. Balicki, 

(3d Cir. 2017)—a case with facts that are remarkably similar

to those before us here.



                                           16
       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 

–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.” 

       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;

                                           17
(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

(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)); 

–60;

cf. 

(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

                                            18
[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.” 

       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 

(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

                                            19
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.” 

Thus, the Estate maintains, its claim against Boyer necessarily

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

(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 

)).

       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

                                            20
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

(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, 

, 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, 

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

tolling 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., 

, 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, 

, 1012 (10th Cir. 2000) (noting that motion to reconsider is

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

presented previously).

                                            22
      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, 

, 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 

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




                                           23
on the Estate’s claims against them.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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