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

                           FOR THE TENTH CIRCUIT                      December 10, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ERNIE CALBART,

             Plaintiff-Appellant

v.                                                        No. 12-1156
                                              (D.C. No. 1:10-CV-01385-LTB-CBS)
THE DENVER SHERIFF                                         (D. Colo.)
DEPARTMENT; DEPUTY SHERIFF
WISE; DEPUTY SHERIFF BURKE,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.


      Ernie Calbart appeals pro se from the district court’s grant of summary

judgment in favor of defendants on his civil rights claim under 42 U.S.C. § 1983.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Calbart alleged in his third amended complaint that he suffered from a

disability related to pain in both of his knees. While he was a pre-trial detainee at the

Denver County Jail, a doctor issued a medical restriction on April 13, 2010,

prescribing a bottom tier cell and a bottom bunk for Calbart. He alleged that he

informed defendants Wise and Burke of the medical restriction and his inability to

climb stairs, but Wise assigned him to a second-floor cell on April 23. Calbart

claimed that he fell down the stairs on May 1, 2010, and his resulting injuries require

him to use a wheelchair.

       The district court construed Calbart’s third amended complaint as bringing a

claim under the Americans with Disabilities Act (“ADA”) and a claim against

defendants Wise and Burke in their individual capacities for violating his rights under

the Eighth or Fourteenth Amendments. Only the latter claim against Wise is at issue

in this appeal.1

       Defendants moved for summary judgment under Fed. R. Civ. P. 56(a). They

argued, inter alia, that Wise was entitled to qualified immunity on Calbart’s civil

rights claim. Calbart responded and the district court referred the motion to a

magistrate judge for a report and recommendation (“R&R”). The magistrate judge

analyzed Calbart’s claim under the Eighth Amendment standard for unconstitutional
1
       The district court granted summary judgment on Calbart’s ADA claim after he
conceded it was moot and voluntarily withdrew it. The court dismissed without
prejudice all claims against defendant Burke under Fed. R. Civ. P. 4(m) because
Burke was not served with the complaint. Calbart does not challenge either of these
rulings on appeal.


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conditions of confinement. See Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)

(“Although the Due Process Clause governs a pretrial detainee’s claim of

unconstitutional conditions of confinement, the Eighth Amendment standard provides

the benchmark for such claims.” (citation omitted)). “To prevail on a ‘conditions of

confinement’ claim under the Eighth Amendment, an inmate must establish that

(1) the condition complained of is sufficiently serious to implicate constitutional

protection, and (2) prison officials acted with deliberate indifference to inmate health

or safety.” Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004) (quotations

omitted). Because Wise asserted the defense of qualified immunity, Calbart bore

“a heavy two-part burden [to] show (1) that the defendant’s actions violated a

constitutional right, and (2) that the right allegedly violated was clearly established at

the time of the conduct at issue.” Id. at 1030 (quotation, ellipsis, and brackets

omitted).

      The magistrate judge concluded that Calbart failed to show that Wise’s actions

violated his Eighth Amendment rights. Therefore, Wise was entitled to qualified

immunity, and the R&R recommended a grant of summary judgment in favor of Wise

on Calbart’s civil rights claim. Calbart filed timely objections to the R&R and the

district court reviewed it de novo. The court concluded the R&R was correct and

granted defendants’ motion for summary judgment. Calbart filed a timely notice of

appeal.




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      In the argument section of his pro se appeal brief, Calbart states only “see page

(2).” Aplt. Br. at 3. The only text on page 2 of his brief that could be construed as

“argument” is the following statement: “Defendant was deliberate[ly] indiffere[nt] to

Mr. Calbart[’s] disabilities[] and safety by housing him on 2nd floor 2 flights of

stairs.” Id. at 2. Calbart provides no further argument, no citation to the record, and

he cites a single case that is inapposite to his Eighth Amendment claim. See id. at 4

(citing Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394 (8th Cir. 2004) (affirming

summary judgment on claim alleging wrongful discharge in violation of First

Amendment)).

      “Although a pro se litigant’s pleadings are to be construed liberally and held to

a less stringent standard than formal pleadings drafted by lawyers, this court has

repeatedly insisted that pro se parties follow the same rules of procedure that govern

other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005) (citation, quotations, and brackets omitted). “Under [Federal Rule

of Appellate Procedure] 28, which applies equally to pro se litigants, a brief must

contain more than a generalized assertion of error . . . .” Id. at 841 (quotations and

ellipsis omitted). Thus, perfunctory allegations of error that fail to frame and

develop an issue are insufficient to invoke appellate review. Murrell v. Shalala,

43 F.3d 1388, 1389 n.2 (10th Cir. 1994).

      This court provides pro se litigants with a form to guide them in presenting

their appellate issues and arguments. When properly completed, we accept this form


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in lieu of a formal brief. And while “we make some allowances for the pro se

plaintiff’s failure to cite proper legal authority, . . . the court cannot take on the

responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Garrett, 425 F.3d at 840 (citation, quotation, and brackets

omitted). Calbart submitted his brief using the pro se form, but even liberally

construed, his brief is “wholly inadequate to preserve issues for review,” and we

decline to exercise our discretion to “delve for substance” in it in order to consider

his appeal. Id.

       The judgment of the district court is AFFIRMED. Calbart’s motion for leave

to proceed on appeal without prepayment of the filing fee is DENIED, and he is

ordered to immediately remit to the court the unpaid balance of the filing fee.


                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




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