UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

FREEMAN BUCHANAN, III, 

 Plaintiff - Appellant, 

v. 

CHRIS ELIOTT, a/k/a Chris 

Elliott; SHANE SAMPSON; 

ASHLEY ALDRICH; KALUP 

PHILPS, a/k/a Kaleb Phillips, 

 Defendants - 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. Freeman 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 based 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 binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive 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: 1
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Chris Elliott, Ashley Aldrich, Shane Sampson, and Kalup Phillips1

 for 

excessive force, denial of medical care, and tampering with mail. 

 To support his claim of excessive force, Mr. Buchanan wanted to use 

a video from a stationary camera in the detention center. But the detention 

center had a policy of overwriting the videos after fourteen days, so the 

video of the incident here was automatically written 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 appointment of counsel. The district court denied these motions. 

The defendants then moved for summary 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 production and 

appointment of counsel. But it’s possible that Mr. Buchanan might have 

1

 The parties differ in how they spell the names of three of the 

defendants. Where the parties differ, we use the defendants’ spelling. 

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intended to appeal the grant 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 judgment.” Notice of Intent to Appeal 

(Apr. 15, 2021). In his appeal brief, he did not expressly address the 

summary-judgment ruling. But he did describe the video footage as 

“momentous” and questioned the district court’s factual findings based on 

the inconsistencies between the video and the documents. 

 Even if Mr. Buchanan had intended to appeal the summary-judgment 

ruling, however, we would lack any basis to reverse. Each defendant 

presented undisputed facts, supported by evidence, which would have 

foreclosed liability for excessive force, 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 Civil Rule 56.1(c)–(d). Given this 

requirement, the failure to dispute an asserted fact permitted the district 

court to deem that fact “admitted.” E.D. Local Civil Rule 56.1(e). 

Despite these provisions 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. Buchanan still failed to respond to 

the summary-judgment motions. 

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 In the absence of any dispute over the defendants’ stated facts, the 

district court had no basis to deny summary judgment based 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 intended to appeal the summary-judgment ruling, we 

would lack any basis to reverse. 

II. Mr. Buchanan’s Motions for Production

 When considering the denials of Mr. Buchanan’s motions for 

production, we apply the abuse-of-discretion standard. Martinez v. Schock 

Transfer & Warehouse Co., 789 F.2d 848, 850 (10th Cir. 1986). We 

conclude that the court acted within its discretion. 

 Mr. Buchanan labelled his first motion a “motion for subpoena” 

(spelling corrected). In the motion, Mr. Buchanan asked for production of 

the video footage rather than for issuance of a subpoena. The court denied 

the motion, explaining that Mr. Buchanan would need to seek production 

by following the procedures spelled out in the Federal Rules of Civil 

Procedure and the local rules. 

 Mr. Buchanan instead filed a second motion, again purporting to 

request subpoenas but actually requesting production of the video footage 

itself. The court again denied the motion, explaining again that 

Mr. Buchanan needed to seek production by complying with the federal and 

local rules. 

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 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 district court’s discretion. Mr. Buchanan 

was pro se, but even pro se litigants must follow the Federal Rules of Civil 

Procedure and the local rules. Ogden v. San Juan Cnty., 32 F.3d 452, 455 

(10th Cir. 1994). These rules required Mr. Buchanan 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 filed). In these circumstances, the district court had the 

discretion to deny Mr. Buchanan’s requests. 

III. Mr. Buchanan’s Motions for Appointment of Counsel 

 Mr. Buchanan moved not only for the video footage but also for 

appointment of counsel. The court could ask an attorney to represent 

Mr. Buchanan, but could not order acceptance of the case. Rachel v. 

Troutt, 820 F.3d 390, 396 (10th Cir. 2016). In deciding whether to request 

counsel, the district court was to consider the merits of the claims, their 

nature, the claimant’s ability to present 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 argues that he could not present documentation 

to the district court because of a pandemic. But he does not provide any 

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specifics, and he did not tell the district court of his inability to provide 

supporting documents. Based on the information available 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 

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