UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ FREEMAN BUCHANAN, III, Pl aintiff - Appellant,

v. CHRIS ELIOTT, a/k/a Chris Elliott; SHANE SAMPSON; ASHLEY ALDRICH; KALUP PHILPS, a/k/a Kaleb Phillips,
De fendants - Appellees. No. 21-7014 (D.C. No. 6:19-CV -00029-RAW-SPS) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BRISCOE , and ROSSMAN , Circuit Judges.

________________ _________________ This appeal grew out of Mr. Fr eeman Buchanan, III’s detention. In the underlying action under 42 U.S. C. § 1983, Mr. Buchanan has sued

* Oral argument would not help us decide the appeal, so we have decided the appeal ba sed on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### March 28, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-7014 Document: 010110663197 Date Filed: 03/28/2022 Page: 12 Chris Elliott, Ashley Aldrich, Shane Sampson, and Kalup Phillips 1 for excessive force, denial of medica l care, and tampering with mail. To support his claim of excessive force, Mr. Bu chanan wanted to use a video from a stationary camera in the detention center. But the detention center had a policy of over writing the videos after fourteen days, so the video of the incide nt here was automatically wr itten over pursuant to that policy. After learning that the video recording was no longer available, Mr. Buchanan moved three times for production of the video footage and twice for appointmen t of counsel. The district court denied these motions. The defendants th en moved for summa ry judgment, and Mr. Buchanan did not respond. The district court granted summary judgment to the defendants, and this appeal followed.
I. The Defendants’ Summary-Judgment Motions Our initial task is to interpret Mr . Buchanan’s appeal brief. Because he is pro se, we liberally construe that brief. See, e.g. , Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). In his brief, he appears to challenge only the denial of his motions for pr oduction and appointment of coun sel. But it’s possible that Mr. Buchanan might have

1 The parties differ in how they spell the na mes of three of the defendants. Where the pa rties differ, we use th e defendants ’ spelling. Appellate Case: 21-7014 Document: 010110663197 Date Filed: 03/28/2022 Page: 23 intended to appeal the gr ant of summary judgment. We liberally construe the appeal brief to consider this possibility. See id. Mr. Buchanan said that he intended to appeal the “Court’s notice of disposition on his summary judgmen t.” Notice of Inte nt to Appeal (Apr. 15, 2021). In his ap peal brief, he did not expressly address the summary-judgment ruling. But he di d describe the vi deo footage as “momentous” and questioned the district court’s factual findings based on the inconsistencies between the video and the documents. Even if Mr. Bu chanan had intended to a ppeal the summary-judgment ruling, however, we woul d lack any basis to re verse. Each defendant presented undisputed fact s, supported by evidence, which would have foreclosed liability for excessive fo rce, denial of medical care, or tampering with the mail. The local rule required Mr. Buchanan to respond to each asserted fact that he disputed. E.D. Local Ci vil Rule 56.1(c)–(d). Given this requirement, the failure to dispute an asserted f act permitted the district court to deem that f act “admitted.” E.D. Loca l Civil Rule 56.1(e). Despite these provision s in the local rules, Mr. Buchanan never responded to the summary- judgment motions. So the defendants moved for an order deeming their summary-judgment motions confessed. In the ensuing period of over four months, Mr. Buchan an still failed to respond to the summary-judgmen t motions. Appellate Case: 21-7014 Document: 010110663197 Date Filed: 03/28/2022 Page: 34 In the absence of any dispute over the defendants’ stated facts, the district court had no basis to deny summary judgment ba sed on the prior video recordings or the overwriting of those videos. And on appeal, Mr. Buchanan has not said what the video would have shown. So even if Mr. Buchanan had intende d to appeal the summa ry-judgment ruling, we would lack any basis to reverse.
II. Mr. Buchanan’s Moti ons for Production When considering the denials of Mr. Buchanan’s motions for production, we apply the a buse-of-discretion standard. Martinez v. Schock Transfer & Warehouse Co. , 789 F.2d 848, 850 ( 10th Cir. 1986). We conclude that the court act ed within its discretion. Mr. Buchanan labelled his firs t motion a “motion for subpoena” (spelling corrected). In the motion, Mr. Buchanan asked for pr oduction of the video footage rather th an for issuance of a s ubpoena. The court denied the motion, explaining th at Mr. Buchanan would need to seek production by following the procedures spelled out in the Federa l Rules of Civil Procedure and th e local rules. Mr. Buchanan instead filed a se cond motion, agai n purporting to request subpoenas bu t actually reques ting production of the video footage itself. The court again denied th e motion, explaining again that Mr. Buchanan needed to seek production by complying with the federal and local rules. Appellate Case: 21-7014 Document: 010110663197 Date Filed: 03/28/2022 Page: 45 After the close of discovery, Mr. Buchanan filed a third motion to produce the video footage, which the district court again denied on the same grounds. These rulings fell within the distri ct court’s discretion. Mr. Buchanan was pro se, but even pro se litigants must follow th e Federal Rules of Civil Procedure and th e local rules. Ogden v. San Juan Cnty. , 32 F.3d 452, 455 (10th Cir. 1994). These rules required Mr. Bu chanan to serve the defendants with the discovery requests; those requests were not to be filed.
See E.D. Okla. Local Civil Rule 26.1 (stating that document requests are not ordinarily to be file d). In these circumstances, the district court had the discretion to deny Mr. Buchanan’s requests.
III. Mr. Buchanan’s Motions fo r Appointment of Counsel Mr. Buchanan moved not only for the video footage but also for appointment of coun sel. The court could ask an attorney to represent Mr. Buchanan, but could not or der acceptance of the case. Rachel v.
Troutt , 820 F.3d 390, 396 (10th Cir. 2016). In deciding whether to request counsel, the district cour t was to consider the mer its of the claims, their nature, the claimant’s ability to pres ent the claims, and their complexity. Id. at 397. The district court stated that it had considered these factors, and Mr. Buchanan has not pointed to any flaws in the court’ s consideration. Mr. Buchanan instead ar gues that he could not present documentation to the district court because of a pa ndemic. But he does not provide any Appellate Case: 21-7014 Document: 010110663197 Date Filed: 03/28/2022 Page: 56 specifics, and he did not tell the dist rict court of his inability to provide supporting documents. Base d on the information ava ilable to the district court, it had discretion to decline to seek counsel for Mr. Buchanan. Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 21-7014 Document: 010110663197 Date Filed: 03/28/2022 Page: 6