Rutherford v. Anderson , 30 F. App'x 828 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 8 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KEVIN RUTHERFORD,
Plaintiff-Appellant,
v. No. 01-1160
(D.C. No. 00-Z-2212)
JOHN ANDERSON, Judge; JULIE (D. Colo.)
MARSHALL, Judge; KENNETH
PLOTZ, Chief Judge; EDWARD
RODGER, District Attorney;
NORMAN COOLING, Asst. District
Attorney; THE JUSTICE OF THE
SUPREME COURT OF COLORADO,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY , McKAY , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
*
This order and judgment is not binding precedent, except under the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.
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 appeal is taken from a district court judgment dismissing plaintiff’s
action brought pursuant to 42 U.S.C. § 1983. He also seeks leave of this court to
proceed on appeal without prepayment of costs or fees.
Plaintiff alleged that the defendants, several state court judges, two district
attorneys and an unknown (and unnamed) justice of the state supreme court,
violated his federal constitutional rights by failing to prosecute (or require the
prosecution of) a particular correctional officer for sexual assault (unauthorized
viewing of his genitals) and other officials for theft or destruction of personal
property. Plaintiff did not name as a party to this action either the correctional
officer who allegedly assaulted him or any other particular defendant for the
alleged theft or destruction of his property. As relief, he seeks to have his case
returned to the state district court for proper handling as a criminal matter.
It appears that he filed administrative grievances within the prison system,
but that relief was denied. He then sought to have prison officials criminally
prosecuted and was informed that the State Inspector General’s Office is the
criminal investigative authority for criminal acts committed within the
Department of Corrections. The chief investigator found insufficient evidence
that any crime had occurred. Plaintiff states that he “filed” criminal charges
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within the state court and that the state court wrongly treated his case as one or
more civil matters and apparently dismissed one or all of them.
The district court dismissed this action as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B). We presume she meant § 1915(e)(2)(B)(i), which provides for
dismissal of a complaint as legally frivolous, and which we review for abuse of
discretion. Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). Plaintiff
asks this court to return his case to the state district court to be “properly
handled” as a criminal matter. Aplt. Br. at 3. Thus, the relief he seeks is in the
general nature of mandamus. This court has no jurisdiction to order a state judge
or court to perform a duty allegedly owed to plaintiff. See 28 U.S.C. § 1361;
Olson v. Hart , 965 F.2d 940, 942 (10th Cir. 1992); Van Sickle v. Holloway , 791
F.2d 1431, 1436 n.5 (10th Cir. 1986).
In addition, to the extent plaintiff may be attempting to seek review of the
dismissal of a state court case, this court is likewise without jurisdiction to review
the judgment of a state court. 1
See Kiowa Indian Tribe of Okla. v. Hoover ,
150 F.3d 1163, 1169 (10th Cir. 1998). Petitioner appears to be aware of his
1
We note that plaintiff argues that he is not challenging the state court’s
decision, but rather the fact that the state court treated his attempt to file a
criminal matter as a civil action and then dismissed the case for failure to adhere
to the civil procedure rules. Aplt. Br. at 17. We regard this as a distinction
without a difference because plaintiff’s remedy is to appeal the state court’s
decision within the state court system.
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potential remedy under Colo. Rev. Stat. Ann. § 16-5-209, including his right to
appeal an adverse state court decision. See Moody v. Larsen , 802 P.2d 1169(Colo. App. 1990).
Finally, the prosecuting attorneys are absolutely immune from suit under
§ 1983 for decisions to prosecute, Hammond v. Bales , 843 F.2d 1320, 1321
(10th Cir. 1988); to not prosecute, Dohaish v. Tooley , 670 F.2d 934, 938
(10th Cir. 1982); and for any related investigatory or evidence gathering functions
undertaken in connection with the prosecutorial function. See Scott v. Hern ,
216 F.3d 897, 909 (10th Cir. 2000) (prosecutor’s immune conduct includes
investigation, or lack thereof).
We grant plaintiff’s motion to proceed without prepayment of fees and
costs, reminding plaintiff of his continuing obligation to make the required
installment payments under 28 U.S.C. § 1915(b). We AFFIRM the district court’s
dismissal of this action as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
For purposes of § 1915(g), our dismissal counts as one prior occasion or strike.
See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th
Cir. 1999).
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The mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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