UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

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MATTHEW RUCKER, 

 Plaintiff - Appellant, 

v. 

SERGEANT JASON GILMORE; 

LIEUTENANT TRACY MCCULLOCH; 

WARDEN JEFFREY FEWELL; DON 

ASH; SERGEANT ROBERT ROME; 

MAJOR JAMES EICKOFF; CAPTAIN 

JOHN RUSSELL, 

 Defendants - Appellees. 

No. 15-3039 

(D.C. No. 5:13-CV-03028-JAR) 

(D. Kan.) 

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ORDER AND JUDGMENT*

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Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. 

_________________________________ 

Matthew Rucker appeals from the district court’s grant of summary judgment 

to defendants in his civil rights suit 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 in 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 10, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

Mr. Rucker was confined at the Wyandotte County Detention Center, which 

has a policy that inmates must send all non-official mail on postcards, rather than in 

envelopes. After jail officials confiscated letters to media that he enclosed in 

envelopes, Mr. Rucker wrote a TV station a series of five postcards. Those cards 

included statements that a health care provider construed as suicidal. Mr. Rucker 

was transferred to the medical housing unit and placed on suicide watch. He alleges 

the medical cell was unsanitary, with urine on the floor and mattress; he was not 

given a gown for four hours; the heat did not work; and he was forced to shower 

shackled in a locked cage shower. Ultimately he sued defendants for violating his 

rights under the First, Eighth, and Fourteenth Amendments. 

In a comprehensive order, the district court determined that defendants were 

entitled to qualified immunity. The court held that Mr. Rucker had not shown any 

violation of his right to free speech and that, to the extent he challenged the 

postcard-only policy, the law was not clearly established that such a policy could be 

unconstitutional. The court further held that Mr. Rucker had not shown that 

retaliation was the “but for” motive for placing him on suicide watch. As for his 

conditions of confinement, the court determined that the conditions did not rise to the 

level of constitutional violations, particularly since they lasted just hours or at most a 

few days. The court also held that Mr. Rucker had offered no evidence that 

defendants were deliberately indifferent to the conditions. Finally, the court held that 

Mr. Rucker’s right to equal protection was not violated when officials refused to give 

him copies of policies that other inmates allegedly received. 
3 

Mr. Rucker proceeds pro se on appeal, as he did in the district court. Although 

we liberally construe his filings, he must follow the same procedural rules as other 

litigants. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 

2005). Federal Rule of Appellate Procedure 28(a)(8)(A) directs an appellant to 

provide, in his opening brief, an “argument, which must contain . . . [his] contentions 

and the reasons for them, with citations to the authorities and parts of the record on 

which [he] relies.” “[T]he 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. 

Mr. Rucker’s opening brief presents vague and conclusory assertions that fail 

to address the district court’s detailed reasons for granting summary judgment to 

defendants. The first point in his argument section is that defendants have not shown 

he agreed to the jail’s postcard-only policy. That is irrelevant; he is bound by 

policies in effect regardless of whether he agrees with them. The second point states 

that defendants, as Kansas officials, have contracted with the United States “to cause 

no injury or harm to any and/or all natural person[]s,” Aplt. Opening Br. at 3, but 

they have in fact harmed him. This general assertion is insufficient to challenge the 

judgment. “Under Rule 28, which applies equally to pro se litigants, a brief must 

contain more than a generalized assertion of error.” Garrett, 425 F.3d at 841 (ellipsis 

and internal quotation marks omitted); see also Reedy v. Werholtz, 660 F.3d 1270, 

1275 (10th Cir. 2011) (“Issues not adequately briefed will not be considered on 

appeal.”). “When a pro se litigant fails to comply with [Rule 28], we cannot fill the 
4 

void by crafting arguments and performing the necessary legal research.” Garrett, 

425 F.3d at 841 (brackets and internal quotation marks omitted). 

Mr. Rucker makes additional assertions in his reply brief, but they too are 

general, and in any event they come too late. “The general rule in this circuit is that a 

party waives issues and arguments raised for the first time in a reply brief. We see 

no reason to depart from that rule here.” Reedy, 660 F.3d at 1274 (brackets, 

citations, and internal quotation marks omitted). 

Mr. Rucker’s motion to proceed without prepayment of costs and fees is 

granted. He is reminded that he must continue to make partial payments until the full 

amount of costs and fees is paid in full. The judgment of the district court is affirmed 

for substantially the reasons set forth in the district court’s Memorandum and Order 

filed on February 6, 2015. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge