* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### January 30, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DAVID L. WRIGHT; JUANITA WRIGHT; D. DUSTIN MAYBURY; NATHAN D. WRIGHT,

Plaintiffs-Appellants,

v. CITY OF ST. FRANCIS, KANSAS; ST. FRANCIS POLICE DEPARTMENT,

Defendants-Appellees. No. 05-3191 (D.C. No. 98-CV-1156-DWB)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.-2-

Plaintiffs, proceeding pro se and in forma pauperis , appeal from a judgment entered against them on a jury verdict. They sued the City of St. Francis and several of its police officials under 42 U.S.C. § 1 983, claiming the defendants violated their constitutional rights. Following a remand from this court, Wright v. City of St. Francis , 95 Fed. Appx. 915 (10th Cir. 2004), a jury trial was held from March 8 to 11, 2005, resulting in a verdict in favo r of defendants. Background Plaintiffs’ complaint was based on four incidents i nvolving them and City of St. Francis police officers, including the polic e chief. See id. at 919-21. Just before trial, plaintiffs dismissed their claims per taining to all incidents except those based on a search of their home on January 17 , 1997. The search, authorized by a warrant, was executed by Kansas Dep artment of Revenue (KDOR) agents, who entered the house with guns draw n and held plaintiffs in the dining room for four hours during the search. Plai ntiffs alleged that defendants gave false information about them in order to obtai n the search warrant, and used unreasonable force in executing the warrant. Defen dants responded that plaintiffs had a history of violent behavior, thus necessitati ng precautionary measures when1 The parties consented to proceed before a magistrat e judge. See 28 U.S.C.

§ 636(c); R. docket sheet, entry 161. -3- interacting with them. In this appeal, plaintiffs contend that the district court 1 committed several trial errors, and that the court should have recused due to bias. Plaintiffs have not filed a transcript of the trial proceedings in this appeal. As appellants, it is plaintiffs’ responsibility to provide the portions of the trial transcript relevant to the issues raised on appeal. See Fed. R. App. P. 10(b); 10th Cir. R. 10.1(A)(1). They requested a free transcri pt and sought a certification by the district court that “the appeal is not frivolou s (but presents a substantial question),” pursuant to 28 U.S.C. § 753(f). The di strict court denied the free-transcript request, noting that two issues cou ld present substantial grounds for appeal, and stating that a transcript is not ne cessary to decide these questions. The court declined to certify plaintiffs’ remaining appellate issues as substantial. Plaintiffs have renewed in this court their requestfor a free transcript and for appointment of counsel. Issues Reviewed Before we consider the question of a free transcrip t, we address the issues the district court certified as substantial: (1) w hether the district court erred in excluding the testimony of three witnesses proffere d to rebut the defendant-police chief’s earlier statements, and (2) whether the dis trict court should have recused.2 Plaintiffs claim the police chief named the three i ndividuals at trial, while

defendants assert that he named them only at his de position. The district court’s trial notes indicated that the police chief did not name the individuals at trial; he testified that he had received the information from “the public.” R. Doc. 304, at 12 n.6. Either way, we conclude that the district court’s ruling was not reversible error. -4- We agree with the district court that a transcript is not necessary for review of these issues. Ruling to Exclude Testimony Plaintiffs challenge a trial ruling to exclude the testimony of three witnesses they proffered to refute the police chief’s testimony that they told him plaintiff David L. Wright had bragged about not pay ing taxes. Plaintiffs wanted to call the witnesses at trial to deny that they ha d made those remarks to the police chief, thus demonstrating that the police ch ief made false statements. 2 The district court held that because plaintiffs admitte d that they had not filed tax returns or paid taxes, the proffered testimony pert ained only to a collateral issue and would confuse the jury. In addition, the court ruled that the police chief’s testimony giving general background information on communications between his department and the KDOR did not place the police ch ief’s character for truthfulness in issue under Fed. R. Evid. 608. We review a trial court’s exclusion of evidence for an abuse of discretion, “reversing only if we have a firm and definite beli ef that the trial court made a-5-

clear error in judgment.” Tanberg v. Sholtis , 401 F.3d 1151, 1162 (10th Cir. 2005) (quotation omitted). Even if we were to find an abuse of discretion, however, “reversible error may be predicated only u pon errors that affect a party’s substantial rights.” Id. Moreover, we “accord considerable deference to a trial court’s determination that evidence is likely to ca use jury confusion.” Id. at 1164. Plaintiffs have not shown that the ruling to exclud e their witnesses affected their substantial rights. Therefore, we decline to rever se the jury’s verdict. Recusal Plaintiffs also contend that the district judge sho uld have recused due to bias against them caused by remarks David L. Wrightmade about the judge at a hearing. They assert that bias was shown by the ju dge’s observation that Mr. Wright showed hostility in the courtroom. In a ddition, they claim bias due to the judge’s former affiliation with an attorney fro m St. Francis. Plaintiffs have not pointed to any act or speech by the district ju dge indicating bias or the appearance of impropriety. See Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996) (noting even appearance of impropr iety must be avoided). To the extent plaintiffs rely on adverse rulings to show b ias, “adverse rulings against a litigant cannot in themselves form the appropriate grounds for disqualification.” Green v. Dorrell , 969 F.2d 915, 919 (10th Cir. 1992). Accordingly, we affirm the district court’s decision not to recuse.-6- Transcript at Government Expense A trial transcript may be provided at government expense “to persons permitted to appeal in forma pauperis . . . if the trial judge or a circuit judge certifies that the appeal is not frivolous (but pre sents a substantial question).” 28 U.S.C. § 753(f). That section was not intended to require free transcripts for all pro se litigants. See Rhodes v. Corps of Eng’rs of U.S. Army , 589 F.2d 358, 359-60 (10th Cir. 1978) (affirming district court’s ruling that appellant did not make showing required by § 753(f)). We recognize t hat it is difficult for courts and litigants to decide whether a substantial quest ion is presented unless the complete record is available. Jaffe v. United States , 246 F.2d 760, 762 (2d Cir. 1957) ; Lee v. Habib , 424 F.2d 891, 904-05 (D.C. Cir. 1970). Neverthel ess, we consider the district court file and plaintiffs’ op ening brief to determine whether the district court abused its discretion in denying the request for a transcript at government expense. See Rhodes , 589 F.2d at 360 (reviewing for abuse of discretion district court’s refusal to certify thatappeal not frivolous). Plaintiffs claim on appeal that reversible error wa s committed relative to testimony given by four witnesses at trial. First, they maintain that the police chief testified falsely that plaintiff Juanita Wrig ht had a history of violent behavior and that plaintiffs kept loaded firearms i n their home.-7-

Second, plaintiffs assign error to the testimony gi ven by Marlene Lebrom about an incident of harassment by plaintiff David L. Wright occurring in December 1996. After trial, plaintiffs discovered a report suggesting that the incident had occurred six months later, in June 199 7. This was significant because the harassment incident was pertinent to wh at the police chief knew about Mr. Wright’s violent tendencies prior to requesting a search warrant in January 1997. Thus, as the district court recognized, this testimony would have been excluded as irrelevant if it had been clear that th e incident occurred after the search warrant was issued. R. Doc. 304, at 14. Third, plaintiffs contend that Sharon Elliott was a llowed to testify that “half of the town was scared of and didn’t like Mr. Wright,” in violation of the rule against hearsay. Aplt. Br. at 3. Fourth, the y claim that Dick Rohweder’s testimony concerning an incident in 1985 was too re mote in time to be relevant, and plaintiffs were not given a report about this i ncident in discovery. The information provided by the district court file and plaintiff’s brief is insufficient to demonstrate that the appeal present s a substantial question. See Rhodes , 589 F.3d at 360; Maloney v. E.I. DuPont de Nemours & Co. , 396 F.2d 939, 940 (D.C. Cir. 1967) (stating appellant has bu rden to prove appeal presents a substantial question). Plaintiffs have not explain ed the significance of the challenged testimony in the context of the entire t rial. They have not informed us-8-

whether the testimony was received over objection, or, if it was, the basis for the trial court’s rulings. They have not shown why adm ission of this testimony was critical to their case, thus requiring reversal. W e recognize that plaintiffs cannot cite to the transcript they now request; however, t hey could surely remember if they objected to the challenged testimony and they could have given us a sense of the context of the evidence without precise record citations. Accordingly, we find no abuse of discretion in the district court’s dete rmination that a free transcript is not warranted, and we deny plaintiffs’ renewed moti on for a free transcript. Without a transcript, we cannot review the propriety of the challenged evidentiary rulings or the sufficiency of the evide nce underlying the jury’s verdict. Consequently, we must affirm. See Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000) (“Where the record is insufficientto permit review we must affirm.”); accord Worthington v. Anderson , 386 F.3d 1314, 1320 (10th Cir. 2004); Deines v. Vermeer Mfg. Co. 969 F.2d 977, 979-80 (10th Cir. 1992). Plaintiffs’ renewed request for a free transcript a nd for appointment of counsel on appeal is denied. The judgment of the d istrict court is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge