* This order and judgment is not binding precedent, e xcept under the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

### AUG 15 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENITO NEGRON, Plaintiff-Appellant,

v. No. 00-1071 OFFICER CARL ADAMS, Adams County; OFFICER M.D. KENNEDY, Adams County; ROBERT A. FULLER, Adams County, Defendants-Appellees. (D.C. No. 88-D-1644) (D.Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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. Benito Negron appeals the district court’s denials of his Fed. R. Civ. P.2

60(b) motion to vacate judgment and his motion for free copies of the record. We exercise jurisdiction pursuant to 28 U.S.C. § 12 91, affirm the judgment of the district court, deny Negron’s motion to reconsider this court’s denial of his motion to appoint counsel, and deny Negron’s motion to strike appellees’ brief.
I. In May 1989, Negron filed a complaint pursuant to 4 2 U.S.C. § 1983 alleging that police officers violated his constitu tional rights during a search of his apartment and his subsequent arrest. The trial court dismissed part of the defendants prior to trial. A jury found against Negron and the court dismisse d Negron’s complaint with prejudice in July 1991. Ne gron appealed to this court, arguing the trial court erred in dismissing some of the defendants, unspecified officers committed perjury, the court erred in deny ing him attorney fees, and the court improperly instructed the jury. This court concluded the trial court did not commit reversible error. Negron v. Adams , Case No. 91-1241, 1992 WL 72948 at *1 (10th Cir. April 10, 1992) (unpublished dispo sition). On December 8, 1998, Negron filed a motion in feder al district court for a free copy of the trial transcript in order to prepare a “petition for certiorari” to this court. The district court denied Negron’s mot ion and denied leave to proceed in forma pauperis. On December 31, 1998, N egron filed a motion for reconsideration, which the district court denied.3

In June and July 1999, Negron filed motions in fede ral district court to vacate the 1991 judgment and requesting a free copyof the record. The district court denied the motions and denied leave to procee d on appeal in forma pauperis. Negron filed a renewed application with this court to proceed in forma pauperis. This court assessed costs and fees again st Negron, payable in partial payments. We remind Negron of his continuing oblig ation to make payments until the entire filing fee has been paid. Negron also filed a motion for appointment of counsel with this court, which was d enied. Negron has filed a motion for reconsideration of that denial.
II. Denial of motion to vacate judgment Negron sought to vacate the 1991 judgment under Fed . R. Civ. P. 60(b)(3) and (4). The district court denied Negron’s motion , concluding Negron failed to present any reason to vacate the judgment after eig ht years had passed. The district court noted Negron failed to demonstrate that any type of fraud, misrepresentation, or other misconduct occurred. “ ‘We review . . . the disposition of Rule 60(b) motions for an abuse of d iscretion. . . . Under this standard, we will not reverse unless the trial court has made “an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.”’” Weitz v. Lovelace Health Sys., Inc. , 214 F.3d 1175, 1181 (10th Cir. 2000) (quoting4

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 992 (10th Cir.1999)). Rule 60(b)(3) allows a district court to vacate a j udgment based on “fraud (whether heretofore denominated intrinsic or extrin sic), misrepresentation, or other misconduct of an adverse party.” Rule 60(b)( 4) allows the district court to vacate a void judgment; Negron’s claim under this s ection is based on his allegations of fraud. Although a Rule 60(b)(3) mot ion must be brought not more than one year after the judgment was entered, that restriction does not limit the power of a court to set aside a judgment for fraud on the court. Fed. R. Civ. P. 60(b). “When alleging a claim of fraud on the court, the plaintiff must show by clear and convincing evidence that there was fraud on the court, and all doubts must be resolved in favor of the finality of the judgment.” Weese v. Schukman , 98 F.3d 542, 552 (10th Cir. 1996). “Generally speaking, only the most egregious misconduct, such as bribery of a judge or members o f a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute a fraud on the court.” Id. at 552-53. “Less egregious misconduct, such as no ndisclosure to the court of facts allegedly pertinent to the matte r before it, will not ordinarily rise to the level of fraud on the court.” Id. at 553. In his motion to vacate, Negron offered to establis h that the 1991 judgment should be vacated because defendants had committed fraud on the court. Negron5

made no assertion concerning what fraudulent conduc t had occurred, claiming only that defendants had conspired to commit fraud on the court. Although Negron contends he needed the trial transcript to d etail the particulars of the fraud, he failed to offer even general allegations of how the defendants acted fraudulently. Although we are to construe pro se f ilings liberally, we are not obligated to supply additional facts or “construct a legal theory for plaintiff that assumes facts that have not been pleaded.” Peterson v. Shanks , 149 F.3d 1140, 1143 (10th Cir. 1998). We conclude the district co urt did not abuse its discretion in denying Negron’s Rule 60(b) motion to vacate. F urther, because Negron failed to allege fraud on the court with any specif icity, we conclude the district court did not abuse its discretion in not holding ahearing on Negron’s motion.
See United States v. 8136 S. Dobson Street , 125 F.3d 1076, 1086 (7th Cir. 1997) (noting that the Federal Rules of Civil Procedure d o not require the district court to hold a hearing on a Rule 60(b) motion, leaving that decision to the district court’s discretion).
Denial of Negron’s motion for free copy of record Negron filed a motion requesting that the court pro vide him a free copy of the record. He asserted he needed the file for evi dence to support his motion to vacate and he did not have money to pay for it. Th e district court denied the motion, concluding Negron did not demonstrate suffi cient evidence or good6

cause as to why he was entitled to copies of the re cord at the court’s expense. Negron contends the district court’s denial of his motion for copies of the record violated his constitutional right to equal p rotection. Negron argues that a person with adequate means can obtain a record and prosecute his claims, while he is denied the opportunity because of his indigen cy. In the context of a direct appeal, this court has noted that “if state statute s provide for appeals from convictions in criminal cases, the due process and equal protection clauses of the 14th Amendment require that the right shall not be limited to those who are able to afford the expense of an appeal.” Patterson v. Medberry , 290 F.2d 275, 277 (10th Cir. 1961). “On direct appeal, a trial trans cript is an absolute matter of right for an indigent criminal defendant.” Ruark v. Gunter , 958 F.2d 318, 319 (10th Cir. 1992). “However, a [28 U.S.C.] § 2255 p etitioner seeking collateral relief must demonstrate that his claim is not frivo lous before the court is required to provide him with a free transcript.” Id. “[A]n indigent § 2254 petitioner does not have a constitutional right to access a free tr anscript in order to search for error.” Id. A § 2254 action is a civil action. Similarly, inthis civil action Negron does not have a constitutional right to a fr ee transcript to search for error when he has not demonstrated that his claim is not frivolous. We conclude the district court did not err in denying Negron’s moti on for a free copy of the record.7

Denial of motion to appoint counsel Negron argues the district court erred in denying h is motion to appoint counsel. “We review the denial of appointment of c ounsel in a civil case for an abuse of discretion.” Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995). In considering whether to appoint counsel, the fact ors the district court should consider include “‘the merits of the litigant’s cla ims, the nature of the factual issues raised in the claims, the litigant’s abilityto present his claims, and the complexity of the legal issues raised by the claims.’” Id. at 979 (quoting Williams v. Meese , 926 F.2d 994, 996 (10th Cir.1991)). After carefu l review of the record, we conclude the district court did not abuse its discretion in denying Negron’s motion to appoint counsel.
III. The judgment of the district court is AFFIRMED. We DENY Negron’s motion to reconsider this court’s denial of his mot ion to appoint counsel and DENY Negron’s motion to strike appellees’ brief. T he mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge