                                                                          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      This order and judgment is not binding precedent, except under the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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