                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 June 11, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 ADAM DMYTRYSZYN,

               Plaintiff - Appellant,                   No. 13-1003
          v.                                           (D. Colorado)
 ROGER WERHOLTZ, Interim                      (D.C. No. 1:12-CV-03241-LTB)
 Executive Director *; LIEUTENANT
 BERNADETTE SCOTT; CAPTAIN T.
 SCOTT; LIEUTENANT MAGELSON;
 MAJOR BILDERAVA; CAPTAIN
 BOLT; SUPERINTENDENT JAMES
 FALK,

               Defendants - Appellees.


                            ORDER AND JUDGMENT **


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.




      *
       Pursuant to Fed. R. App. 34(c)(2) Tom Clements is replaced with Roger
Werholtz as Executive Director of the Colorado Department of Corrections.
      **
        After examining the brief and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
      Plaintiff Adam Dmytryszyn, a Colorado state prisoner, appeals from an

order by the United States District Court for the District of Colorado denying his

motion for a preliminary injunction against Defendants, who are all current or

former employees of the Colorado Department of Corrections. He alleged that

Defendants denied him his constitutional right of access to the courts by

confiscating a Department of Justice report containing information that would be

helpful to him in pursuing state postconviction remedies. Exercising jurisdiction

under 28 U.S.C. § 1292(a)(1), we affirm because Dmytryszyn has not

demonstrated that his state postconviction claim is nonfrivolous.

      Dmytryszyn wishes to challenge his state-court menacing conviction on the

ground that police used an improper procedure in interviewing witnesses to his

crime. To develop the basis for this claim, he requested a copy of a National

Institute of Justice report containing Department of Justice guidelines for law-

enforcement use of eyewitness evidence. But when a copy of the report addressed

to him arrived at the prison, prison officials refused to give it to him, contending

that it posed a threat to the safety and security of the prison. Dmytryszyn brought

suit in district court under 42 U.S.C. § 1983, alleging, among other things, that

the officials’ confiscation of the report violated his First Amendment right of

access to the courts. He moved for a temporary restraining order to prevent the

officials from destroying the report and a preliminary injunction requiring them to




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give him the report. The district court denied his motion, and Dmytryszyn

appealed.

      We review for abuse of discretion the district court’s decision denying the

motion for a preliminary injunction. See Little v. Jones, 607 F.3d 1245, 1250

(10th Cir. 2010). To obtain a preliminary injunction, Dmytryszyn had to

demonstrate “(1) a likelihood of success on the merits; (2) a likelihood that [he

would] suffer irreparable harm in the absence of preliminary relief; (3) that the

balance of equities tips in [his] favor; and 4) that the injunction is in the public

interest.” Id. at 1251 (internal quotation marks omitted).

      The first requirement is dispositive. To establish denial of access to the

courts, Dmytryszyn must show “actual injury from interference with his access to

the courts—that is, that [he] was frustrated or impeded in his efforts to pursue a

nonfrivolous legal claim concerning his conviction or his conditions of

confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (emphasis

added). Dmytryszyn has not adequately alleged such injury. He claims only that

he needs the confiscated report to provide persuasive authority that will help

establish his claim that “the police officer committed misconduct in [his] case” by

failing to “separate witnesses during questioning.” Aplt. Br. at 9.

      Dmytryszyn fails, however, to explain how he can bring such a claim in a

motion for postconviction relief in Colorado state court. The Colorado Rules of

Criminal Procedure provide that in deciding a motion for postconviction relief,

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“[t]he court shall deny any claim that was raised and resolved in a prior appeal or

postconviction proceeding on behalf of the same defendant,” subject to certain

exceptions not implicated here. Colo. R. Crim. P. 35(c)(3)(VI). They also state

that “[t]he court shall deny any claim that could have been presented in an appeal

previously brought or postconviction proceeding previously brought,” id. at

35(c)(3)(VII) (emphasis added), again subject to exceptions not applicable to

Dmytryszyn’s claim. Dmytryszyn has not explained, nor can we imagine, why a

claim that police officers used improper interviewing techniques could not have

been raised on direct appeal. And if it was in fact raised, it must have been

denied and cannot be raised again in postconviction proceedings. Because a

Colorado court would be bound to reject Dmytryszyn’s claim if raised in a

postconviction motion, the claim is legally frivolous. Thus, the district court did

not abuse its discretion in denying Dmytryszyn’s motion for a preliminary

injunction.

       We AFFIRM the district court’s denial of Dmytryszyn’s motion. We

GRANT his motion to proceed in forma pauperis. He is reminded of his

continuing obligation to make partial payments until the filing fee has been paid

in full.

                                ENTERED FOR THE COURT


                                Harris L Hartz
                                Circuit Judge

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