                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   September 19, 2006
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

    ZEBEDEE E. HA LL,

               Plaintiff-Appellant,

    v.                                                  No. 05-1419
                                              (D.C. No. 03-cv-140-M SK-CB S)
    CITY AND COU NTY OF DENVER;                          (D . Colo.)
    TH E D EN V ER SWA T TEA M , known
    and unknown members of; SGT.,
    B ERDA H L, #86059; TEC H.
    CA NINO , #91041; TECH. GR OTH E,
    #95015; TECH. GILW ORTH, #89029;
    TEC H. DELM EN IC O, #89029; TECH.
    FO X , #87026; TEC H B RO D EN,
    #90026; TECH. M OEN, #91027;
    TEC H. LA U RITA , #83011; TECH.
    M CK IHHEN , #86042; TEC H. TITU S,
    #93013; TECH. M EYER, #89041;
    TECH. BRENNA N, #95035; OFC.
    N EBEL, #97015; SG T. O RG A N,
    #75033,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before TYM KOV IC H, M cKA Y, and BALDOCK , Circuit Judges.




      Plaintiff Zebedee E. Hall, appearing pro se, appeals from the district court’s

oral decision, entered after a bench trial, denying him relief under 42 U.S.C.

§ 1983. On appeal, Hall argues that the district court erred (1) in denying his

motion for appointment of counsel; (2) by misstating the facts in its oral decision;

(3) by acting as surrogate counsel for defendants when ruling on his motion for a

new trial; and (4) in failing to grant his motion for a new trial. 1 Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I.

      In his § 1983 complaint, Hall alleged that defendants, the City and County

of Denver and several law enforcement officers, violated the Fourth Amendment

and 18 U.S.C. § 3109 when the officers executed a search warrant at his home

without knocking and announcing their presence before forcibly entering. After

denying the parties’ motions for summary judgment, the district court held a




1
       In his brief on appeal, Hall mentions three additional arguments: (1) the
district court erred in dismissing the individual-capacity claim against the
prosecutor in his criminal case, Kathleen M . Tafoya; (2) the district court erred in
denying his motion for summary judgment; and (3) the district court improperly
allowed defense counsel to lead a child witness during cross examination.
Because these issues are merely mentioned, but are not argued, we deem them to
be waived. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1
(10th Cir. 1992), modified on other grounds on reh’g, 995 F.2d 992 (10th Cir.
1993); Abercrom bie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990).

                                          -2-
two-day bench trial, with Hall appearing through video teleconferencing from

prison. At the close of trial, the district court decided in favor of defendants,

orally delivering findings of fact and conclusions of law. The court decided that

Hall did not meet his burden of “establishing that Defendants did not knock and

announce prior to entering his home, and that it was more likely than not that

such knocking and announcing took place.” See Supp. R., Vol. 1, Tab 149 at 2

(O pinion & Order D enying M otion for N ew Trial).

      After the district court entered judgment, and after Hall filed his notice of

appeal, he also filed a timely motion for a new trial. 2 See Fed. R. Civ. P. 59(a).

In that motion, he argued that (1) the district court should have appointed counsel

to assist him; (2) he was prevented from subpoenaing two witnesses; (3) newly

discovered evidence indicated defendants’ evidence was perjured; (4) prison

officials delayed his mail, thereby preventing him from issuing trial subpoenas;

(5) the district court misinterpreted the evidence; and (6) defects in the video

connection resulted in the district court being unable to correctly hear his

testimony.




2
       In addition, Hall filed a motion for leave to proceed on appeal in forma
pauperis (IFP). The district court denied H all’s IFP motion as deficient, because
it lacked a certified copy of his prisoner trust fund statement for the six-month
period immediately preceding the filing of the motion. See 28 U.S.C.
§ 1915(a)(2).

                                          -3-
      This court abated this appeal pending the district court’s disposition of the

motion for new trial. See Stone v. INS, 514 U.S. 386, 402-03 (1995) (holding

timely Rule 59 motion divests appellate court of jurisdiction). The district court

denied the motion, finding no manifest injustice because (1) Hall was able to

adequately represent himself; (2) Hall never alerted the court during trial that he

had been unable to subpoena witnesses and, in any event, Hall’s case was not

prejudiced by the witnesses’ absence from trial; (3) even with Hall’s newly

discovered evidence, a copy of a supplemental report by the Aurora Police

Department, 3 the court would have reached the same decision; and (4) the court

accurately stated the evidence, and, even if the court misconstrued the evidence,

Hall’s daughter’s testimony established that defendants knocked and announced

before entering the house. Hall amended his notice of appeal, and this court

ordered additional briefing on the issues concerning denial of a new trial.

                                         II.

                                         A.

      On appeal, Hall first argues that the district court should have granted his

motion for appointment of counsel. W e conclude the district court did not abuse

its discretion in denying the motion. See Rucks v. Boergermann, 57 F.3d 978, 979



3
      W e disagree that this was newly discovered evidence. Defendants provided
a copy of this report at the time they filed their motion for summary judgment.
Compare Dist. Ct. Original File, Vol. 1, Doc. 87, Ex. C at 11 (M otion for
Summary Judgment) with R., Vol. I, Tab 138, Ex. 22 (M otion for N ew Trial).

                                         -4-
(10th Cir. 1995) (reviewing denial of motion for appointment of counsel for abuse

of discretion). The district court fully considered relevant factors when denying

appointment of counsel. See R., Vol. I, Doc. 36 at 2-3 (citing Rucks and other

cases and listing relevant factors of complexity of case, nature of factual issues,

litigant’s ability to present his claims, litigant’s efforts to obtain his own counsel,

and merits of claims). Hall did not meet his burden of showing that counsel

should be appointed. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115

(10th Cir. 2004). Further, nothing convinces us, as Hall suggests, that the district

court should have reconsidered its decision later in the proceedings.

                                           B.

      Next, Hall argues that the district court misstated the facts in its bench

decision. In order to review the district court’s oral decision and the evidence

presented at trial, a trial transcript is essential. Hall had the burden to provide the

necessary transcript. See Fed. R. App. P. 10(b)(2) (“If the appellant intends to

urge on appeal that a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant must include in the record a transcript of

all evidence relevant to that finding or conclusion.”); 10th Cir. R. 10.1(A)(1)

(“The appellant must provide all portions of the transcript necessary to give the

court a complete and accurate record of the proceedings related to the issues on

appeal.”). But he failed to do so. Although w e liberally construe his pro se

filings, Hall’s pro se status does not exempt him from following these procedural

                                           -5-
rules or from providing a transcript. See Murray v. City of Tahlequah, 312 F.3d

1196, 1199 n.3 (10th Cir. 2002); Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.

1994); 10th Cir. R. 11.2(A) (stating that in pro se cases, district court clerk sends

only transcripts that have been filed for appeal).

      Contending that he was not aware that he was required to provide the

record on appeal, Hall requests for the first time in his reply brief that this court

sua sponte obtain the trial transcript. Indigent appellants may obtain a free trial

transcript if the requirements of 28 U.S.C. § 753(f) are met. Section 753(f)

provides that “[f]ees for transcripts furnished in . . . proceedings to persons

permitted to appeal in forma pauperis shall . . . be paid by the United States if the

trial judge or a circuit judge certifies that the appeal is not frivolous (but presents

a substantial question).” W e therefore must consider whether Hall should be

allowed to proceed on appeal IFP and w hether his appeal presents a substantial

question.

      Although the district court denied leave to proceed IFP on appeal on the

technical ground that Hall failed to provide a certified copy of his prisoner trust

fund account statement, his IFP motion before this court does not suffer from the

same defect. Thus, we grant leave to proceed IFP on appeal.

      W e recognize that it is difficult for courts and litigants to decide whether

a substantial question is presented unless the complete record is available. Lee v.

Habib, 424 F.2d 891, 904-05 (D.C. Cir. 1970); Jaffe v. United States, 246 F.2d

                                           -6-
760, 762 (2d Cir. 1957). Nonetheless, we consider the district court file and

Hall’s appellate briefs when determining whether he presented a substantial

question. See Rhodes v. C orps of Eng’rs of United States Army, 589 F.2d 358,

359-60 (8th Cir. 1978) (per curiam).

      Hall states in his appellate brief that the district court orally found that he

heard a noise before defendants entered his home and that he never disputed that

defendants w aited twelve to eighteen seconds before entering his home. Hall

contends these findings misstated the facts because he, his w ife, and his

five-year-old daughter all testified that defendants never knocked or announced

their presence before forcibly entering the home. Thus, he believes that because

defendants did not knock, there was no waiting period before they entered. Also,

Hall denies ever stating that he heard a noise before defendants entered the home.

      These arguments, when considered in light of the district court’s thorough

order denying Hall’s motion for new trial, do not identify a substantial question

deserving of appellate review. Nor are the documents in the district court’s file,

including the summary judgment pleadings, sufficient to convince us that Hall’s

appeal presents a substantial question.

      Because Hall fails to present a substantial question on appeal, he does not

qualify for production of a transcript at government expense under § 753(f).

W e therefore deny his request in his reply brief that we obtain the transcript

sua sponte. W ithout a transcript of the evidence presented or the district court’s

                                          -7-
oral decision, we must affirm the district court’s bench decision. See Scott v.

Hern, 216 F.3d 897, 912 (10th Cir. 2000) (requiring affirmance where record

is insufficient for review ); M cGinnis v. Gustafson, 978 F.2d 1199, 1200-01

(10th Cir. 1992) (requiring affirmance where district court’s ruling from bench

was not transcribed).

                                          C.

      Third, Hall argues that the district court improperly acted as surrogate

counsel for defendants when ruling upon his motion for a new trial, because

defendants never responded to the motion. In light of defendants’ failure to

respond, he believes the district court should have granted a new trial.

      A response to a motion is required only when the Federal Rules of Civil

Procedure or the local rules require that affidavits or other papers be filed.

5 Charles Alan W right & Arthur R. M iller, Federal Practice & Procedure § 1190

at 48 (3d ed. 2004). No federal or local rules require a response to a Rule 59

motion. Thus, the district court was free to deny the motion without a response

from defendants. And the district court did so, deeming Hall’s contentions

unrebutted, yet determining they did not warrant the relief Hall requested.

Supp. R., Vol. I, Tab 149 at 1 n.1. The denial of the motion does not show

that the district court acted improperly in defendants’ favor or as their surrogate

counsel.




                                          -8-
                                          D.

      In his final argument, Hall argues that the district court should have granted

his motion for a new trial. This argument again concerns the district court’s

alleged role as surrogate counsel for defendants, an argument we have already

rejected. W e therefore conclude the district court did not abuse its discretion in

denying the motion for new trial. See Anaeme v. Diagnostek, Inc., 164 F.3d 1275,

1284 (10th Cir. 1999).

                                         III.

      The judgment of the district court is AFFIRM ED. Hall’s motion for leave

to proceed on appeal without prepayment of costs or fees is GRANTED.

W e remind him that he must continue making partial payments until the entire

filing fee has been paid.


                                                     Entered for the Court



                                                     Timothy M . Tymkovich
                                                     Circuit Judge




                                          -9-
