UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GERARDO THOMAS GARZA, Plaintiff–Appellant,

v. STEVEN TURLEY; BILLIE CASPER; BRYANT HERMAN; DANIEL SPARKS; ERIC DIFRANCESCO; RICHARD GARDEN, Dr.; TOM ANDERSON; BLAKE NIELSON; B. OAKLEY, Defendants–Appellees. No. 11-4115 (D.C. No. 2:09-CV-00801-DAK) (D. Utah)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY , and LUCERO , Circuit Judges.

Gerardo Thomas Garza, a Utah state prisoner pro ceeding pro se, appeals the grant of summary judgment to defendant pr ison officials on his claim they violated the Eighth Amendment by failing to provide him with medically necessary footwear. Exercising jurisdiction under 28 U. S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 23, 2012 Elisabeth A. Shumaker Clerk of Court- 2 - I In September 2007, prison medical pe rsonnel diagnosed Garz a with “[s]light cavus deformity with mild clawing of the third and fourth toes of bilateral feet exacerbated by swing phase.” The clin ician prescribed well-padded supportive shoes with Velcro closures to help with Garza’s foot probl ems. Garza also received insoles for these shoes. In February 2008, a different prison clinician referred Garza to an orthotics provider for “padd[ed] shoes with wide toe backs” and “potentially orthotic inserts.” Later that month, the orthotics provider fitted him for custom-made shoes and inserts. On March 13, 2008, Garza was transferre d to the prison’s Uinta 1 Facility. Two weeks later, he received his new custom-fitted shoes. However, these shoes had shoelaces instead of Velcro straps, a nd inmates at Uinta 1 are prohibited from possessing shoes with laces due to security concerns. A ccordingly, prison officials confiscated Garza’s custom-fi tted shoes, but they permitte d him to keep his special insoles. That fall, medical personnel reexamined Garza, and the prison ordered him new orthopedic shoes with Velc ro closures. Garza received these shoes, which were not custom-made, on April 1, 2009. A pris on clinician subsequently examined Garza and concluded that although he was referr ed for custom-fitted shoes “due to his demands,” these standard ort hopedic shoes were “appropriate for his condition.” Garza filed this suit allegi ng that by refusing to allow him to retain his customfitted orthopedic shoes with shoelaces, defendants violated his rights under the- 3 - Eighth Amendment, the Rehabilitation Ac t of 1973, and the Americans with Disabilities Act (“ADA”). The district court rejected summarily Garza’s ADA and Rehabilitation Act claims, fi nding that his complaint di d “not provide sufficient detail to support a claim under either of those statutes.” Concerning his Eighth Amendment claim, the district court found that Garza fa iled to establish that the defendants were deliberately indiffere nt to his serious medical needs. II A Defendants contend that we lack jurisd iction because Garza failed to file a notice of appeal until long after his April 25, 2011 extended deadline had expired. See De Leon v. Marcos, 659 F. 3d 1276, 1280 (10th Cir. 2011)

. Garza maintains, however, that his notice of appeal was ti mely by application of the “prison mailbox rule.” Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). Under that rule, a “pro se prisoner’s notice of appeal will be considered timely if given to prison officials for mailing prior to the filing deadline, regardle ss of when the court itself receives the documents.” Id. at 1164. The record in this case contains a form from th e prison’s Division of Institutional Operations with file stamps showing that Garza provided what appears to be the notice of appeal to a correct ional officer on April 22, 2011—three days before the deadline. Thus, regardless of when the pris on mailed the document, Garza- 4 - has satisfied the requirements of the prison mailbox rule, and his notice of appeal is timely. B “We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the distri ct court.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). Summary judgment is a ppropriate “if the movant shows that there is no genuine disput e as to any material fact a nd the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a). 1 Throughout his appellate presentation, Garza compla ins that the defendants testified falsely in their su mmary judgment affidavits. But he does not identify any specific falsehoods or explain how the alle gedly false testimony involves a genuine issue of material fact that would preclude the entry of summary judgment. Although we liberally construe the pleadings of a pro se litigant, we will not craft his arguments for him. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). We discern no sufficiently deve loped appellate argum ent on this point. Garza has also waived any challenge to the district court’ s dismissal of his ADA and Rehabilitation Act clai ms. Garza mentions th e ADA and the Rehabilitation Act in his appellate brief, but he has failed to construct any argument using the language of these statutes or to specifically contest the di strict court’s determination- 5 - that his ADA and Rehabilitation Act claims we re deficiently pleaded. Accordingly, we will confine our analysis to his Eighth Ame ndment claim. 2 The Eighth Amendment requires prison officials to ma intain “humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To demonstrate a violation of this requireme nt, a prisoner must fi rst show that the conditions of confinement posed “a substantia l risk of serious harm.” Id. at 834. Second, the prisoner must show that officials acted with “deliberate indifference.” Id. This second, subjective prong require s proof that the offi cials were actually aware of the risk and that they failed to take “reasonable meas ures to abate it.” Id. at 847. Garza argues that the defendants viol ated his Eighth Amendment rights by confiscating his custom-made shoes and failing to provide him with an adequate replacement for them. Gar za asserts two problems with the shoes that the prison provided him. First, the shoes are not “cust om made to [his] feet.” Second, Garza claims that because one of hi s feet is a half-size bigger th an the other, he requires a different-sized shoe for each foot. Neither of these difficulties rises to the level of a c onstitutional violation. A “prisoner’s right is to medica l care—not to the type or scope of medical care which he personally desires.” Henderson v. Sec’ y of Corr., 518 F.2d 694, 695 (10th Cir. 1975) (citation omitted) (holdi ng that a prison’s failure to provide corrective shoes- 6 - did not give rise to a constitutional violat ion); see also Davidson v. Scully, 155 F. Supp. 2d 77, 82-84 (S.D.N.Y. 2001) (dec lining to find an Eighth Amendment violation where an inmate re ceived extensive treatment fo r his podiatric problems but alleged that the prison did not properly treat him because it denied him particular orthopedic shoes). Prison medical staff repeatedly attended to Garza’s foot problems. These clinicians concluded that “supportive” or “medical” shoes, rather than custom-tailored shoes, were adequate for Garza’s needs. Furthermore, none of the medical personnel who examined Garza c oncluded that a pair of different-sized shoes was medically necessary. Even if these assessments we re mistaken, mere negligence is not sufficient to state a claim under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). III The judgment of the district court is AFFIRMED . Garza’s motion to proceed in forma pauperis is GRANTED . His motion for appointment of counsel is DENIED

. Entered for the Court Carlos F. Lucero Circuit Judge