                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 29 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    RICHARD C. TOLBERT,

                Plaintiff-Appellant,

    v.                                                  No. 98-3323
                                                 (D.C. No. 98-CV-2081-KHV)
    KPHN RADIO; MIKE SHANIN;                               (D. Kan.)
    STEPHEN G. MIRAKIAN,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , KELLY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Richard C. Tolbert, proceeding pro se, filed this action

in district court alleging that defendants-appellees KPHN, a radio station; Mike

Shanin, a talk-show host on KPHN; and Stephen G. Mirakian, an attorney for

KPHN, had engaged in employment discrimination in violation of Title VII of the

Civil Rights Act of 1964. The district court appointed counsel to represent

Tolbert, but then permitted counsel to withdraw due to a conflict of interest.

Defendants filed motions for summary judgment, primarily on the ground that

Tolbert, an occasional “guest co-host” on Shanin’s show, was never a KPHN

employee. When Tolbert failed to respond to defendants’ motions, the district

court ordered him to show cause why the motions should not be granted. Tolbert

did not respond to the show cause order within the allotted time and the court

entered summary judgment in favor of defendants. This appeal followed.

      Summary judgment is appropriate if “there is no genuine issue as to any

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

law.” Fed. R. Civ. P. 56(c). We review a grant of summary judgment de novo,

applying the same standard applied by the district court. We construe the factual

record and inferences reasonably made from it in the light most favorable to the

nonmoving party.   See McGarry v. Board of County Comm’rs       , 175 F.3d 1193,

1198 (10th Cir. 1999).




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       “‘District courts must take care to insure that pro se litigants are provided

with proper notice regarding the complex procedural issues involved in summary

judgment proceedings.’”    Jaxon v. Circle K Corp ., 773 F.2d 1138, 1140 (10th Cir.

1985) (quoting Garaux v. Pulley , 739 F.2d 437, 439 (9th Cir. 1984)). The grant

of an unopposed motion for summary judgment against a pro se litigant may, in

some circumstances, be an abuse of discretion.    See id.

       Pro se litigants are held to less stringent standards than those applicable to

licensed attorneys.   See Meade v. Grubbs , 841 F.2d 1512, 1526 (10th Cir. 1988).

Nevertheless, they must “‘follow the same rules of procedure that govern other

litigants.’” Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett       , 24 F.3d

136, 139 (10th Cir. 1994) (quoting   Green v. Dorrell , 969 F.2d 915, 917 (10th Cir.

1992)). Tolbert has admitted receipt of defendants’ summary judgment motions.

Additionally, he responded to KPHN’s motion for dismissal, which called the

court’s attention to Tolbert’s failure to respond to the show cause order. In that

filing, Tolbert asserted that he had not received a copy of the order and speculated

that it had been mailed to his former attorney. He did not, however, challenge the

legal or factual premise of the summary judgment motions.

       The failure to respond to defendants’ motions has its consequences.

Defendants have submitted evidence and argument demonstrating that Tolbert was

not their employee. Tolbert has not provided any basis for disputing this


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conclusion. Accordingly, the record is bereft of any support for an element

essential to Tolbert’s case: that is, proof that defendants were his employers.

See Lockard v. Pizza Hut, Inc. , 162 F.3d 1062, 1069 (10th Cir. 1998) (“In order

to establish a prima facie case under Title VII, [plaintiff] was required to prove,

among other things, that [defendant] was her employer.”). After reviewing the

record on appeal, we determine that summary judgment was the appropriate

disposition of this case.

       Tolbert also contends that the district court erred in refusing to appoint

replacement counsel. “We review the denial of appointment of counsel in a

civil case for an abuse of discretion.”    Rucks v. Boergermann , 57 F.3d 978, 979

(10th Cir. 1995). The district court should consider the merits of the litigation,

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

complexity of the legal issues involved.     Id. When the plaintiff is indigent, the

district court has discretion to appoint counsel when, under the totality of

circumstances, the denial of counsel would result in a fundamentally unfair

proceeding. See McCarthy v. Weinberg , 753 F.2d 836, 839-40 (10th Cir. 1985).

       After reviewing the district court’s consideration of Tolbert’s application,

we conclude that the district court considered the required factors in exercising its

discretion. Moreover, the denial of counsel did not result in a fundamentally

unfair proceeding.


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AFFIRMED. The mandate shall issue forthwith.



                                        Entered for the Court



                                        Mary Beck Briscoe
                                        Circuit Judge




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