                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       July 25, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    JOHN LESTER SALAZAR,

             Plaintiff-Appellant,

     v.                                                No. 05-2325
                                              (D.C. No. CIV-00-841 JP/W DS)
    DR . DA NIEL SEAG RA VE,                             (D . N.M .)
    Psychiatrist; STEVE RODR IGU EZ;
    VINCE M ARQUEZ; RICK
    M CG AH IE,

             Defendants-Appellees,

     and

    W ILL B ELL; D A V ID IV ER SO N,

             Defendants.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff-appellant John Salazar brought this § 1983 action against

employees of the Bernalillo County Detention Center (BCDC defendants) and

employees of the Las Vegas M edical Center (LVM C defendants) for alleged

violations of his right to be free from excessive force while a pretrial detainee.

The district court conducted a bifurcated trial, addressing first whether plaintiff

had exhausted his administrative remedies. At the conclusion of that phase of the

proceeding, the court ruled that plaintiff had failed to exhaust his remedies vis a

vis the BCDC defendants. In an order dated M arch 24, 2005, the claims against

those defendants were dismissed with prejudice.

      As to the LVM C defendants, the court found that plaintiff had appropriately

exhausted his remedies, and the matter proceeded as a trial to the court on the

liability of those defendants. In an order dated September 27, 2005, the court

granted judgment for defendants and clarified that its earlier dismissal of the

BCDC defendants was without prejudice. Plaintiff appeals from this result, and

we affirm.

                   Appellate jurisdiction over BCDC defendants

Jurisdictional Facts

      On October 7, 2005, plaintiff filed a notice of appeal in the district court

with a caption identifying “Dr. D aniel Seagrave et. al.” as defendants. The notice

states in its entirety: “Notice is hereby given that John L. Salazar, Plaintiff Pro

Se, appellant, in the above named captioned case, her[e]by appeal[s] to the United

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States Court of Appeals for the 10th Tenth Circuit from a Statement of Fact and

Conclusion Of law by Judge Eginton, Stated: ‘For the foregoing reason, the court

hereby finds in favor of LV M C defendants Seagrave, M cGahie, M arquez and

R odriquez [sic] on plaintiff’s claims of excessive force.’” Opening Br. Attach. A ,

doc. 2. The certificate of service immediately following the copy of the Notice of

appeal attached to plaintiff’s opening brief indicates that it was served only on

“D iane W ebb, A ttorney for the Estate and Defendants attorney at P. O. Box AA,

Albuquerque, N.M . 87110.” There is no indication who Diane Webb is or how

she is related to this matter. Despite plaintiff’s assertion to the contrary, there is

no evidence in the record that the notice of appeal was ever served on the BCDC

defendants or their counsel.

      Sometime in December 2005, however, well after the time for filing a

notice of appeal from the September 27th order had passed, plaintiff apparently

did serve counsel for the BCDC defendants with a copy of his opening brief.

Plaintiff does not dispute the BCDC defendants’ assertion that this was the first

they knew that a formal appeal had been filed. Upon receipt of the brief, the

BCDC defendants filed a motion with this court to dismiss them from the appeal

“to the extent Salazar’s appeal may apply to them.” That matter w as referred to

the panel on the merits and is now before us.




                                           -3-
Jurisdictional Analysis

      “Rule 3 of the Federal Rules of Appellate Procedure conditions federal

appellate jurisdiction on the filing of a timely notice of appeal.” Sm ith v. Barry,

502 U.S. 244, 245 (1992). Such notice must “designate the judgment, order or

part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). The “appellate court

has jurisdiction to review only the judgment or part of the judgment designated in

the notice of appeal.” Averitt v. Southland M otor Inn of Okla., 720 F.2d 1178,

1180 (10th Cir. 1983).

      Courts w ill liberally construe the requirements of Rule 3, occasionally

allowing some variance from the rule’s technicalities if the document filed

manages to meet the rule’s requirements. Smith, 502 U.S. at 248. “This principle

of liberal construction does not, however, excuse noncompliance with the Rule.

Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a

prerequisite to appellate review . Although courts should construe Rule 3 liberally

when determining whether it has been complied with, noncompliance is fatal to an

appeal.” Smith, 502 U.S. at 248 (citations omitted).

      A notice of appeal must specifically indicate the filer’s intent to obtain

appellate review in order to provide sufficient notice to other parties and the

courts. Id. “Thus, the notice afforded by a document . . . determines the

document’s sufficiency as a notice of appeal.” Id. Plaintiff’s pro se status does




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not excuse him from complying with procedural rules. Ogden v. San Juan

County, 32 F.3d 452, 455 (10th Cir. 1994).

      Because of the need to assess the sufficiency of notice, courts often rely on

the circumstances surrounding the putative appeal. In Cooper v. American

Automobile Insurance Co., 978 F.2d 602 (10th Cir. 1992), this court considered a

situation similar to the one at bar. There, the plaintiff had sued three entities: a

surety, the United States Department of Agriculture (USD A), and the Packers and

Stockyards Administration (PSA ). The surety filed a counterclaim seeking

indemnification. The district court granted summary judgment to the surety, then

later dismissed the USDA and the PSA on sovereign immunity grounds. As its

final ruling, the court, in an order dated February 28, 1990, granted summary

judgment in favor of the plaintiff on the surety’s counterclaim.

      The plaintiff’s notice of appeal named only the February 28, 1990 judgment

as the subject of the appeal. This court was therefore required to examine the

scope of its jurisdiction on appeal, specifically whether the plaintiff had perfected

an appeal of the earlier dismissal of the claims against the United States. Holding

that he had, this court cited several factors instructive for our purposes: The

plaintiff’s notice of appeal named the United States as a defendant appellee; all

supporting papers, including the plaintiff’s docketing statement, indicated an

intent to appeal the dismissal of the claims against the United States; and,

importantly, all the documents were served on the United States. Under these

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circumstances, this court held that the appeal encompassed the dismissal of the

claims against the United States. In contrast to the facts in Cooper, plaintiff here

did not specifically name the BCDC defendants in his notice of appeal and did not

serve his notice of appeal on them.

       W e acknowledge the line of cases holding that naming a final judgment

generally as the matter being appealed from is sufficient to include for appellate

review all the earlier orders that have merged into the judgment. See, e.g.,

M cBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (citing

cases). Here, however, plaintiff specifically limited his appeal to that part of the

judgment finding no liability on the part of the LV M C defendants. “If a notice of

appeal is deliberately limited to part of a judgment, the appellant cannot

thereafter unilaterally expand the scope of the appeal to include the matters

originally omitted.” 16A Charles Alan W right, Arthur R. M iller & Edward H.

Cooper, Federal Practice and Procedure § 3949.4 (3d ed. 1999); see also Cunico

v. Pueblo Sch. Dist., 917 F.2d 431, 444 (10th Cir. 1990) (stating that plaintiff’s

clear intention to appeal only a portion of district court’s order limits this court’s

jurisdiction). 1




1
       Additionally, the fact that plaintiff so specifically designated the part of the
judgment he w ished to appeal makes immaterial the fact that the district court’s
final order clarified that the BCDC defendants had been dismissed without
prejudice.


                                           -6-
      W e also recognize that, under some circumstances, a litigant may perfect an

appeal by filing a document other than a formal notice of appeal if that document

is filed within the deadline for appeal. Smith, 502 U.S. at 248-49. Contrary to

plaintiff’s situation, however, his opening brief was filed and served on the

BCDC defendants well after the time allowed for appeal and thus cannot serve as

a surrogate notice of appeal sufficient to invoke this court’s jurisdiction over

those defendants.

      Plaintiff here was required to file something to indicate his intent to appeal

both the ruling in favor of the BCDC defendants and the separate and later ruling

in favor of the LVM C defendants. See Nolan v. United States Dep’t of Justice,

973 F.2d 843, 846-47 (10th Cir. 1992). Because he did not do so, his attempt to

bring the BCDC defendants into this appeal must fail.

                         M erits as to the LVM C defendants

      As mentioned above, after a six-day bench trial of the LVM C defendants,

the district court found defendants not liable on plaintiff’s claims of excessive

force relating to incidents occurring on September 1 and September 8, 1998.

Relying on the standard set forth in Giron v. Corrections Corp. of America,

191 F.3d 1281, 1289 (10th Cir. 1999), the district court concluded that plaintiff

had failed to “demonstrate that defendants maliciously and sadistically applied

force to cause him harm on September 1, 1998.” R. Vol. XII, doc. 409 at 13.

Further, the court found that “the degree of force used under these circumstances

                                          -7-
was necessary to control plaintiff,” and that “defendants w ere not involved in

plaintiff’s handling and transport on September 8, 1998.” Id. at 14.

      On appeal, plaintiff argues that 1) the trial judge was biased against him;

2) his case against the BCDC defendants should be reopened to receive new

evidence; 3) there was insufficient evidence to find for defendants, including his

argument that the evidence established that one, if not all, of the defendants were

present during the alleged beating on September 8; 4) he exhausted his remedies

vis a vis the LV M C defendants; and 5) defendants were not entitled to qualified

immunity. W e will address these issues in the order presented.

      “In an appeal from a bench trial, we review the district court’s factual

findings for clear error and its legal conclusions de novo. . . . Thus, we will

reverse the district court’s finding only if it is without factual support in the

record or if, after review ing all the evidence, we are left with a definite and firm

conviction that a mistake has been made.” Keys Youth Servs., Inc. v. City of

Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001) (quotation marks and citation

omitted).

      Plaintiff points to a remark made by the district court judge informing

plaintiff that his case would eventually end up in this court. Plaintiff view s this

remark as evidence that the judge had already decided that plaintiff would lose in

the district court even before he had the opportunity to put on evidence. Plaintiff

misconstrues the judge’s remarks. The judge made his statement about eventual

                                          -8-
appeal in the context of the fact that he had found plaintiff had not exhausted his

remedies vis a vis the BCDC defendants. The judge was trying to explain to

plaintiff that, assuming he wanted to undo that judgment, the remedy would be an

appeal to the Tenth Circuit. W hen plaintiff asked the judge whether he should go

forward with the merits of his case, the judge encouraged him to do so. The

judge correctly advised plaintiff to present his whole case at that time, noting that

he should not “rely on the Tenth Circuit [] to do it [for you]”. R. Supp. Vol. V at

139. Far from being biased against plaintiff, the judge was extremely patient and

gentle with this pro se litigant, helping him on numerous occasions to understand

the proceeding.

      Plaintiff repeats the argument made to the district court that he should be

allowed to reopen his case to prove that he exhausted his remedies with regard to

the BCDC defendants. As we have already held, however, this court has no

jurisdiction over those defendants, making this argument irrelevant.

      Next, plaintiff challenges the sufficiency of the evidence, arguing his

interpretation of the testimony and emphasizing why he should have prevailed.

As the district court correctly observed, however, this was a credibility case, and

trial judges are in the best position to evaluate such matters. W e find no error in

the judge’s conclusion that plaintiff failed to prove defendants were malicious and

sadistic in their treatment of him. There is more than adequate factual support in

the record to support the court’s decision. See Keys Youth Servs., 248 F.3d at

                                          -9-
1275. As for plaintiff’s assertion that the evidence showed one or more

defendants w ere present during the September 8th incident, he does not point to

any evidence in the record to substantiate that claim. See SEC v. Thom as,

965 F.2d 825, 827 (10th Cir. 1992) (noting that the court will not “sift through”

the record to find support for a claimant’s arguments).

      Plaintiff’s last two arguments are irrelevant. He argues that he exhausted

his remedies vis a vis the LVM C defendants. The court did not hold otherw ise.

He also argues that those defendants should not have been afforded qualified

im munity. They w eren’t. H ad the district court come to either of these two

conclusions, plaintiff would not have been able to present his case on the merits

against defendants.

      The motion of the BCDC defendants to dismiss this appeal is GRANTED to

the extent that they were purported appellees in this matter. The judgment of the

district court is A FFIR ME D.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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