                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        JUN 4 1998
                                 TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                            Clerk
ROD DIDERICKSON, a patient at the Utah State
Hospital, individually and on behalf of all others
similarly situated; CLARA DIDERICKSON,

      Plaintiffs-Appellants,

           and

CHRISTOPHER O’LEARY, involuntary civil
committee,

      Plaintiff,

v.                                                          No. 97-4120
                                                        (D.C. No. 96-CV-659)
DOCTOR ANTHONY GILLETT, in his official                       (D. Utah)
capacity as treating psychiatrist; RICHARD
SPENCER, in his official capacity as Clinical
Director of the Utah State Hospital; MEREDITH
ALDEN, in her official capacity as Executive
Director of the Division of Mental Health; ROD
BETIT, in his official capacity as Executive Director
of the Department of Human Services; WAYNE
BROWN, Dr., in his official capacity as treating
psychiatrist,

      Defendants-Appellees,

            and

MILO ANDREUS, Dr., and WARD M. HEDGES,
M.D., in their official capacities as treating
psychiatrists,

      Defendants.
                               ORDER AND JUDGMENT*


Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.


       Rod and Clara Diderickson, patients at the Utah State Hospital (Hospital), appeal

the district court’s order granting summary judgment in favor of the Hospital.1 As their

sole issue on appeal, they contend the Hospital was required to appoint a guardian to

exercise substituted judgment on their behalf before forcibly medicating them with

psychotropic drugs. We affirm the district court’s order granting summary judgment,

declining review of the issue raised by the Didericksons because it is raised for the first

time on appeal.

       The Didericksons’ complaint in district court alleged they were medicated with

psychotropic drugs against their will, and that they suffered unnecessary roughness and

were unnecessarily restrained at the Hospital. The complaint did not request relief for

failure to appoint a guardian to exercise substituted judgment on their behalf, and the

district court’s order did not discuss appointment of a guardian. The Didericksons raise



       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       1
         Christopher O’Leary was a plaintiff in the complaint filed in district court but
has not joined the appeal.

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this issue for the first time on appeal.

       As a general rule, we do not decide issues initially raised on appeal. See Tele-

Communications, Inc. v. Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997); Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 720-21 (10th Cir. 1993). This rule sensibly

prohibits a party from losing “in the district court on one theory of the case, and then

prevail[ing] on appeal on a different theory.” Id. at 721.

       Review of issues not raised below would require us frequently to remand
       for additional evidence gathering and findings; would undermine the need
       for finality in litigation and conservation of judicial resources; would often
       have this court hold everything accomplished below for naught; and would
       often allow a party to raise a new issue on appeal when that party invited
       the alleged error below.

Tele-Communications, 104 F.3d at 1232.

       The Didericksons argue they raised the issue by referencing the fact they were

forcibly medicated while at the Hospital and by citing cases that address guardianship

issues in their complaint. However, vague, arguable references to a point in the district

court proceedings do not preserve the issue on appeal. Lyons, 994 F.2d at 721. Since the

Didericksons did not challenge the Hospital’s failure to provide them with a guardian in

district court, they have failed to preserve the issue on appeal.

       The Didericksons also argue we should decide the guardianship issue to “prevent

manifest injustice” under the “exceptional circumstances” presented in their appeal. See

Okland Oil Co. v. Conoco, Inc., ___ F.3d ____, 1998 WL 251130 *21 n.4 (10th Cir. May

19, 1998). We note that the Didericksons’ appeal was argued the same day this court

                                              -3-
heard oral argument in Jurasek v. Verville, et al., Case No. 97-4082. In stark contrast to

the Didericksons’ appeal, Jurasek raised the guardianship issue in his complaint, briefed

the issue before the district court, and fully developed the record for appeal. Moreover,

the district court considered the parties’ arguments and relevant case law and ruled on the

guardianship issue. Since the issue will be resolved by our decision in Jurasek, no

“manifest injustice” will occur by our refusing to consider the newly-raised issue in this

appeal.

       The district court’s order is AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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