FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 4, 2010
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
VITO J. KERSHAW,
Plaintiff-Appellant,
v. No. 10-1058
(D.C. No. 1:09-CV-02791-ZLW)
PEOPLE OF COLORADO; SHERRIE (D. Colo.)
O’BRIAN, Clerk-Recorder; NANCY
DOTY, Clerk-Recorder; CRYSTAL S.
YUSTEN; ARAPAHOE COUNTY
BOARD OF COMMISSIONERS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Vito J. Kershaw, a Colorado state prisoner proceeding pro se, appeals the
district court’s order dismissing his action as legally frivolous. We have
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction under 28 U.S.C. § 1291 and, for substantially the same reasons given
by the district court in its order, dismiss this appeal as frivolous and assess one
strike against Mr. Kershaw.
A review of the materials before the district court reveals the following:
Mr. Kershaw alleged he was brought before the Arapahoe County Court on
criminal charges and that the charges were dismissed with prejudice because of a
lack of probable cause. He was later tried on the same charges, which he believes
was, in view of the first dismissal, a violation of his right against being put in
double jeopardy under the Sixth Amendment of the United States Constitution.
He filed a motion in the second state case to dismiss on double-jeopardy grounds,
which was denied. He appealed the denial of that motion to the Colorado Court
of Appeals. For his appeal, he obtained a transcript of the hearing from the first
case and claims that it was altered in that it does not indicate that the court
entered a final judgment dismissing the charges with prejudice.
In his federal suit, filed as a prisoner complaint under 42 U.S.C. § 1983, he
claimed he could prove the transcript was inaccurate, and thereby establish a
double jeopardy violation, if the district court were to order the release of the
computer discs on which the hearing was digitally recorded and from which the
allegedly erroneous transcription was made. The district court concluded that the
complaint was legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and dismissed
it without prejudice. First, the court determined that to the extent Mr. Kershaw
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was raising a due process challenge to the state court’s refusal to dismiss the
charges in the second case on double jeopardy grounds, he failed to state any
federal constitutional claim against the defendants in this action, who are the
appeals clerk for the Arapahoe County District Court, an individual identified as
the head clerk/recorder for that court, the People of the State of Colorado, and the
Board of Commissioners for Arapahoe County. The district court informed
Mr. Kershaw that if, at the conclusion of the second state case, he seeks to
challenge any conviction on federal constitutional grounds, he must first exhaust
his state remedies before raising his constitutional claims in federal court in an
application for a writ of habeas corpus. Next, the court concluded that the only
claims Mr. Kershaw was asserting against the defendants—tampering with
evidence and altering a transcript—were criminal in nature, and that he lacked
standing as a private citizen to invoke the authority to initiate a federal criminal
prosecution that is granted exclusively to United States attorneys by 28 U.S.C.
§ 547. See Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989). Accordingly, because
the facts he alleged did not support any arguable federal constitutional claim
against defendants, the court dismissed the action as legally frivolous.
On appeal, Mr. Kershaw has not argued that the district court erred;
instead, he has reiterated his claims, summarily contends that they are
meritorious, and asks only that this court order the transcript of the hearing from
his first state case directly from the computer hard drive that recorded it. See
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Aplt. Br. at 4. Having reviewed the record and Mr. Kershaw’s pro se filings with
the liberality accorded to pro se litigants, see Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008), we conclude that this appeal is frivolous for
substantially the same reasons set forth in the district court’s dismissal order. We
therefore assess one strike against Mr. Kershaw under 28 U.S.C. § 1915(g), and
we note that the district court’s dismissal of his complaint as frivolous also counts
as a strike. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d
775, 780 (10th Cir. 1999). If Mr. Kershaw acquires a third strike, he will not be
entitled to the privilege of in forma pauperis status. See id. Mr. Kershaw’s
motion to proceed on appeal without prepayment of fees or costs is denied, and he
is therefore ordered to make immediate payment of the unpaid balance of his
appellate filing fee.
Entered for the Court
David M. Ebel
Circuit Judge
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