* 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 

FILED

United States Court of Appeals

Tenth Circuit

August 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

VITO J. KERSHAW,

Plaintiff-Appellant,

v.

PEOPLE OF COLORADO; SHERRIE

O’BRIAN, Clerk-Recorder; NANCY

DOTY, Clerk-Recorder; CRYSTAL S.

YUSTEN; ARAPAHOE COUNTY

BOARD OF COMMISSIONERS,

Defendants-Appellees.

No. 10-1058

(D.C. No. 1:09-CV-02791-ZLW)

(D. Colo.)

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

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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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