F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              APR 5 2004
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 ANTHONY T. AVERY,

          Plaintiff-Appellant,

 v.                                                        No. 03-4213
                                                            (D. Utah)
 JARED ANDERSON; AARON D.                          (D.Ct. No. 2:01-CV-763-TC)
 KENNARD; RONALD G. ADAMS,
 sued in their individual capacities,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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          This order and judgment is not binding precedent except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Anthony T. Avery, a federal inmate appearing pro se, appeals the district

court’s summary judgment dismissal of his complaint, filed pursuant to 42 U.S.C.

§ 1983. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



       In his civil rights complaint, Mr. Avery alleged a prison official violated

his Eighth Amendment right against cruel and unusual punishment by maliciously

using excessive force against him when handcuffing him, resulting in a lacerated

wrist and injured thumb. 1 The specific facts surrounding his complaints of

excessive force and injuries are more fully set forth in the district court’s order

granting summary judgment.



       Following Mr. Avery’s filing of his pro se civil rights complaint, he

requested appointment of counsel and production of documents. The district

court denied Mr. Avery’s request for counsel, explaining no constitutional right to

counsel exists in § 1983 actions. Relying on Rucks v. Boergermann, 

,

979 (10th Cir. 1995), it explained 28 U.S.C. §1915(e)(1) allows the court

discretion to appoint counsel for indigent inmates, subject to various factors such


       1
         The district court issued an order sua sponte dismissing all the defendants,
except the officer who handcuffed Mr. Avery, based in part on Mr. Avery’s failure to
allege those defendants personally participated in the denial of his constitutional rights.
Mr. Avery is not appealing their dismissal.


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as the merits of the claims, the nature of the factual issues raised, the litigant’s

ability to present his claims, and the complexity of the legal claims raised. After

considering these factors, the district court concluded: 1) it was unclear whether

Mr. Avery asserted a colorable claim; 2) no complex issues existed; and 3) Mr.

Avery was not incapacitated nor unable to adequately function in pursing his

claims. The district court noted it would appoint counsel if it appeared necessary

after further screening of the case. The district court then issued an order staying

the action and directing the defendant correction officer to file a Martinez report.

See Martinez v. Aaron, 

(10th Cir. 1978).



      The correction officer, through counsel, filed a comprehensive Martinez

report and a motion for summary judgment to dismiss Mr. Avery’s complaint.

The Martinez report included the correction officer’s affidavit, affidavits of other

correction officers either present during or immediately after the handcuffing

incident, and internal reports following an investigation of the incident. Mr.

Avery filed his responses to both the Martinez report and the motion for summary

judgment, which included his own declaration and affidavits of several inmates

who witnessed the incident. Mr. Avery also filed a motion to compel discovery

based on his earlier request for production of documents. The district court

denied and struck this motion from the record based on its stay of the


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proceedings.



       On receipt of Mr. Avery’s response to the Martinez report, the district court

issued an order granting summary judgment in favor of the correction officer. In

so doing, the district court carefully analyzed the parties’ summary judgment

burdens, the doctrine of qualified immunity, and the applicable law for

establishing an Eighth Amendment claim for use of excessive force. Applying

these standards, the district court found a dispute of material fact did exist as to:

1) the level of force necessary to prevent Mr. Avery from pulling his cuffed left

hand back into his cell; 2) whether the officer warned Mr. Avery about resisting;

and 3) the nature of the injuries to Mr. Avery’s wrist, arm and thumb. 2



       Despite this dispute of fact, the district court noted it must look at whether

the officer was entitled to qualified immunity as a matter of law. In determining

whether the force used could plausibly have been unnecessary or wanton, the

district court relied on Hudson v. McMillian, 

, 7 (1992), in explaining



       2
          In the Martinez report, the correction officer relied on affidavits and medical
records indicating Mr. Avery’s thumb suffered trauma, infection and degenerative
arthritis prior to the cuffing incident. Even though Mr. Avery disputes this contention,
the cause and nature of his injuries are not material to resolving the issue of qualified
immunity in this case.


                                            -4-
it must consider “the need for application of force, the relationship between that

need and the amount of force used, the threat reasonably perceived by the

responsible officials, and any efforts made to temper the severity of a forceful

response.”



      In applying this analysis, the district court noted Mr. Avery admitted he

violated cuffing procedures by: 1) withdrawing his uncuffed right hand from a

cuff-port after the officer already cuffed his left hand; 2) refusing to comply with

the officer’s orders; and 3) demanding the officer uncuff his left hand. Mr.

Avery’s admission he withdrew his uncuffed hand from the cuff-port was

corroborated by officers who witnessed the incident and stated Mr. Avery

appeared to be attempting to pull the cuffs into his cell. The officer cuffing Mr.

Avery stated he believed Mr. Avery was attempting to pull the cuffs into the cell

and knew he could use the cuffs as a weapon to injure his cell-mate or corrections

officers if allowed to gain control of them.



      Under the circumstances presented, the district court concluded the

officer’s belief was reasonable and the only way to make Mr. Avery physically

comply was to exert force on his already cuffed arm. Accordingly, the district

court concluded the officer was entitled to qualified immunity because “the


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amount of force described by [Mr. Avery], even if objectively unreasonable under

the circumstances, was not so far disproportionate to the perceived threat that it

would have been clear to a reasonable officer that the conduct was unlawful in the

situation he confronted.”



      On appeal, Mr. Avery raises essentially three issues, contending the district

court improperly: 1) denied him appointment of counsel; 2) denied his discovery

request; and 3) granted summary judgment even though genuine issues of

disputed material fact existed as to whether the officer used excessive,

unprovoked force. In support of his appeal, Mr. Avery provides a well-pled,

articulately crafted pro se brief.



      Our analysis on appeal is dependent on the standards by which we must

review summary judgment dismissal of Mr. Avery’s complaint. In general, we

review a summary judgment order de novo, considering the evidence and all

reasonable inferences drawn therefrom in the light most favorable to the

nonmoving party. See Cooperman v. David, 

, 1164 (10th Cir.

2000). Summary judgment is proper only when there are no genuinely disputed

material issues of fact and the moving party is entitled to judgment as a matter of

law. 

R. Civ. Proc. 56(c)). A mere factual dispute will not


                                         -6-
preclude summary judgment, but instead, a genuine issue of material fact must

exist. 

law will identify which facts are material,” and

“[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” 

this court construes pro se pleadings liberally, applying a less stringent

standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 

, 520 (1972).



      In reviewing summary judgment motions, we look at the parties’ respective

burdens. With respect to claims of individual liability, the defendant, as the

movant for summary judgment, bears the initial burden of demonstrating the

absence of a genuine issue of material fact and entitlement to judgment as a

matter of law. See Adler v. Wal-Mart Stores, Inc., 

, 670-71 (10th

Cir. 1998). Movants may meet their burden simply by pointing out a lack of

evidence on the nonmovant’s essential claims. 

If this initial burden is

carried, the nonmovant may not rest solely on his pleadings, but must set out

specific facts in support of his claims, by reference to affidavits, deposition

transcripts or other exhibits incorporated therein. 

the burdens of the parties differently on claims of qualified


                                          -7-
immunity. “When a § 1983 defendant raises the defense of qualified immunity on

summary judgment, the burden shifts to the plaintiff to show that 1) the official

violated a constitutional or statutory right; and 2) the constitutional or statutory

right was clearly established when the alleged violation occurred.” Olsen v.

Layton Hills Mall, 

, 1312 (10th Cir. 2002) (quotation marks and

citations omitted). To determine whether the right was clearly established, “[t]he

relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” Saucier v. Katz,

, 202 (2001). As the district court explained, the existence of a

genuine issue of material fact does not automatically preclude a grant of summary

judgment on qualified immunity grounds over the issue of excessive force. 

may consider if, under the facts alleged by the nonmoving party, a

reasonable officer would have clearly understood if the level of forced used was

excessive. 

“If the officer’s mistake as to what the law requires is

reasonable, however, the officer is entitled to the immunity defense.” 

      We have reviewed the parties’ pleadings and briefs, the record on appeal,

the district court’s decision, and considered them in light of the applicable law,

including the summary judgment standard and respective burdens of proof. The

district court issued a comprehensive Order granting summary judgment based on


                                          -8-
the issue of qualified immunity, and in so doing, clearly considered the applicable

law, and the facts in the light most favorable to Mr. Avery. We agree with the

district court’s conclusion summary judgment as a matter of law is appropriate in

this instance given Mr. Avery’s admission he violated cuffing procedures by

withdrawing his uncuffed hand, disobeying the officer’s orders, and demanding

his left hand be uncuffed. This, together with the defendant’s and other officers’

reasonable belief Mr. Avery was attempting to pull the cuffs into his cell and

might use the cuffs as a weapon, are undisputed material facts sufficient to

support entitlement to qualified immunity. While the district court found genuine

issues of disputed material fact existed in this case, those material to the issue of

qualified immunity are not in dispute. Accordingly, the district court did not err

in determining the officer was entitled to qualified immunity because “the amount

of force described by [Mr. Avery,] even if objectively unreasonable under the

circumstances, was not so far disproportionate to the perceived threat that it

would have been clear to a reasonable officer that the conduct was unlawful in the

situation he confronted.”



      As to the issue of appointment of counsel, “[w]e review the denial of

appointment of counsel in a civil case for an abuse of discretion.” 

. The district court did not err in holding no constitutional right to counsel


                                          -9-
exists for prisoners alleging civil rights violations, see Durre v. Dempsey, 

, 547 (10th Cir. 1989), and that 28 U.S.C. § 1915(e)(1) permits a district

court to appoint counsel only if it deems it appropriate. In making this

determination, the court considers “the merits of the litigant’s claims, the nature

of the factual issues raised in the claims, the litigant’s ability to present his

claims, and the complexity of the legal issues raised by the claims.” 

(quotation marks and citation omitted). In this case, the district court

clearly considered these factors, and found appointment of counsel unnecessary.

We note the remarkable quality, clarity and thoroughness of Mr. Avery’s pro se

appeal brief, together with his § 1983 complaint, certainly demonstrate his ability

to present his claims. For this and the same reasons articulated by the district

court, we conclude it did not abuse its discretion in denying Mr. Avery’s motion

to appoint counsel.



      Similarly, we review a district court’s denial of a discovery request for

abuse of discretion. See Ahrens v. Ford Motor Co., 

, 1145 (10th

Cir. 2003). In this case, we conclude no abuse of discretion occurred in denying

Mr. Avery’s discovery request before granting the summary judgment motion as a

matter of law. As the Supreme Court has explained, courts are under an

obligation to resolve threshold qualified immunity issues before allowing


                                           -10-
discovery, and “bare allegations of malice” are insufficient “to subject

government officials either to the costs of trial or to the burdens of broad-

reaching discovery.” See Harlow v. Fitzgerald, 

, 817-18 (1982).

Accordingly, qualified immunity is intended to shield a defendant not only from

liability, but from the burdens of trial, including unnecessary discovery. See

Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 

, 645 (10th Cir.

1988). In this case, sufficient undisputed material facts existed to resolve the

issue of qualified immunity as a matter of law, without the need for additional

discovery.



        Accordingly, for substantially the same reasons articulated in the district

court’s August 21, 2003 Order, and the reasons articulated herein, we hold the

district court properly granted summary judgment in favor of the defendant and

dismissed Mr. Avery’s complaint. For these reasons, we AFFIRM the district

court’s order and DISMISS Mr. Avery’s appeal. We nevertheless grant Mr.

Avery’s motion for leave to proceed on appeal without prepayment of costs or

fees.



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge

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