* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### October 4, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MICHAEL CLAYTON COOPER,

Plaintiff - Appellant,

v. JEFF WATERS, Physician Assistant,

Defendant - Appellee. No. 04-1383 (D.C. No. 02-K-1243 (PAC))

(D. Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR, KELLY, andMURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument.1 Mr. Cooper’s complaint originally named Sheriff Joh n Wesley Anderson

and Terry Maketa as defendants. Those defendants w ere dismissed by an order of the district court, and Mr. Cooper does not challen ge that order on appeal. -2- Plaintiff Michael Clayton Cooper, a Colorado inmate proceeding pro se, claims that defendant Waters, a physician assistantemployed at the El Paso County Jail in Colorado Springs, Colorado, was deli berately indifferent to his serious medical needs during the time he was a pret rial detainee at that facility. He filed suit under 42 U.S.C. § 1983. The districtcourt granted summary judgment in defendant’s favor. Mr. Cooper appeals and we affirm. 1 Mr. Cooper sustained a bullet wound to his knee bef ore he was received at the jail in April of 2002. During his stay at the jail, Mr. Waters treated his knee injury. Mr. Cooper alleged (1) that the medical tr eatment of his knee injury was contrary to the instructions from the physician who had treated him at the hospital; (2) his knee brace and crutches were take n away, despite his need for them; (3) he did not receive the physical therapy p rescribed by the physician; (4) he did not receive adequate or correct pain medicat ions; and (5) he was assigned an upper bunk on an upper level of the jail facility, which was difficult and painful for him to manage due to his knee injury. On cross motions for summary judgment, the magistrate judge recommended granting Mr. Waters’ motion. The district court adopted the magistrate judge’s recom mendation and entered judgment against Mr. Cooper.2 In his appellate brief, Mr. Cooper has listed as ba ckground information

several rulings for which he has not provided argum ent or legal authority. Accordingly, we do not review those issues. See Phillips v. Hillcrest Med. Ctr. , 244 F.3d 790, 800 n.10 (10th Cir. 2001) (holding ap pellate court need not consider argument where party has failed to supportit “with any authority, legal or otherwise”). -3- On appeal, Mr. Cooper reasserts the claims he made in the district court. 2 In addition, he has raised two issues in his reply brief on appeal. He contends that his right to confidentiality in his medical re cords was violated when the records were revealed to a third party. He also cl aims that by considering the reports of two prison guards who observed that he d id not use his knee brace or crutch, Mr. Waters allowed non-medical personnel to participate in an evaluation of his medical condition. Although Mr. Cooper ment ioned these arguments in his summary-judgment pleadings filed in the district co urt, he did not present them in his complaint or his amendments to the complaint. He did not alert the district court that these allegations were intended for cons ideration as distinct claims for relief, rather than as supporting argument for the claims he had articulated. Moreover, these claims were not included in the fin al pre-trial order, so they were waived. Wilson v. Muckala , 303 F.3d 1207, 1215 (10th Cir. 2002); see also R. doc. 118, at 10 (final pre-trial order stating it “ will control the subsequent course of this action and the trial” and limiting amendmen t). Accordingly, we do not consider these claims on appeal. See S. Hospitality, Inc. v. Zurich Am. Ins. Co. ,-4-

393 F.3d 1137, 1142 (10th Cir. 2004) (appellate cou rt reviews claims fairly raised and decided, but does not consider on appeal any th eory not raised in district court); Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d 1274, 1280 (10th Cir. 2003) (issues not presented to district court will not be addressed on appeal); Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000) (appellate cou rt will not consider issue raised for first time in reply brief ). Turning to the claims properly raised and decided i n the district court, we review de novo the district court’s grant of summary judgment. Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). Summary judgment is appropriate if there is no genuine issue of materia l fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Mr. Cooper is r epresenting himself on appeal, so his pleadings will be construed liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972). We have carefully reviewed the record on appeal, as well as the briefs submitted by the parties. Applying the standards s et out above, we affirm the summary judgment substantially for the reasons stat ed in the magistrate judge’s August 9, 2004 recommendation, as adopted by the di strict court.-5-

The district court granted Mr. Cooper’s motion to p roceed on appeal without prepayment of costs and fees. Mr. Cooper i s reminded that he is obligated to continue making partial payments until the entire fee has been paid. The judgment of the United States District Court fo r Colorado is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Stephanie K. Seymour Circuit Judge