                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     March 6, 2009
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


 WENDEL ROBERT WARDELL, JR.,

              Plaintiff-Appellant,                       No. 08-1257
 v.                                                      (D. of Colo.)
 ERIC H. HOLDER, JR., Attorney                   (D.C. No. 08-cv-176-ZLW)
 General for the United States, in his
 official capacity; TROY A. EID,
 United States Attorney, in his official
 capacity; MATTHEW T. KIRSCH;
 UNITED STATES ATTORNEY’S
 OFFICE FOR THE DISTRICT OF
 COLORADO,

              Defendants-Appellees. *


                          ORDER AND JUDGMENT **


Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges. ***




      *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Defendants -
Appellees request that Eric H. Holder, Jr. be substituted for Michael Mukasey as
an Appellee in this case.
      **
         This order and judgement is not binding precedent except under the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.
      ***
          After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Wendel (Robert) Wardell, Jr., a federal prisoner appearing pro se, appeals

the district court’s dismissal of his civil rights complaint for failure to pay an

initial partial filing fee or to show cause why he could not pay. Exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                   I. Background

      Wardell filed his pro se complaint in the United States District Court for

the District of Colorado. He also filed a motion for leave to proceed in forma

pauperis, pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C.

§ 1915. On May 2, 2008, a magistrate judge entered an order granting the

motion. The order required Wardell to pay a $350.00 filing fee in installments

and directed him to either pay an initial partial filing fee of $16.00 within thirty

days or show cause why he could not do so. To show cause, Wardell would need

to file a current certified copy of his inmate trust fund statement. On May 30,

Wardell filed a “Motion for Modification/Clarification” of the magistrate judge’s

order, asserting the Bureau of Prisons (BOP) was improperly drawing money from

his inmate trust fund account. Though his motion was not entirely clear, Wardell

also appeared to indicate he lacked funds to pay the $16.00 initial partial filing

fee. He failed, however, to comply with the magistrate judge’s instruction that he

include a certified copy of his inmate trust fund statement along with the motion.

      In an order dated June 12, the district court dismissed Wardell’s complaint

without prejudice for failing to either pay the initial filing fee or submit a

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certified copy of his inmate trust fund account showing he had no ability to pay.

Through a Federal Rule of Civil Procedure 59(e) motion, Wardell asked the court

to amend or alter its judgment. The Rule 59(e) motion asserted that Wardell had

in fact arranged to have the $16.00 fee sent to the district court, but that the BOP

did not send the money until after the magistrate judge’s 30-day deadline had

expired.

       The district court denied the Rule 59(e) motion in an order dated June 28,

finding that Wardell had failed to “allege the existence of any new law or

evidence,” and had not “convince[d] the court of the need to correct clear error or

prevent manifest injustice.” R., Doc. 20 at 3. The court noted that its docketing

records showed it had still not received the $16.00 fee and concluded that

“Wardell’s unexplained ‘arrangements’ to have the initial partial filing fee paid to

the Court and his conclusory assertion that prison officials failed to collect and

transmit the [fee] . . . do not demonstrate he satisfied his responsibility to pay the

initial partial filing fee.” Id.

       Wardell appeals the district court’s judgment and its denial of his post-

judgment Rule 59(e) motion. Because Wardell appears pro se, we construe his

arguments on appeal liberally. See de Silva v. Pitts, 481 F.3d 1279, 1283 n.4

(10th Cir. 2007).




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                                       II. Analysis

      We review a district court’s dismissal for failure to comply with a court

order to pay a filing fee, as well as its denial of a Rule 59(e) motion, for an abuse

of discretion. KT & G Corp. v. Attorney General of the State of Oklahoma, 535

F.3d 1114, 1133 (10th Cir. 2008); Gripe v. City of Enid, 312 F.3d 1184, 1188

(10th Cir. 2002). A trial court abuses its discretion when it makes “an arbitrary,

capricious, whimsical, or manifestly unreasonable judgment.” Nalder v. W. Park

Hosp., 254 F.3d 1168, 1174 (10th Cir. 2001) (quotation omitted).

      We find the district court did not abuse its discretion in this case. On May

2, 2008, the magistrate judge established an initial partial filing fee of $16.00 and

directed Wardell to pay this fee within thirty days or show cause why he could

not do so. In his May 30 “Motion for Modification/Clarification,” Wardell did

not indicate he tried to pay the initial partial filing fee, and indicated he lacked

funds to do so. Wardell also neglected to attach a certified copy of his inmate

trust fund statement. Because Wardell failed to comply with the magistrate

judge’s instructions, the district court dismissed his claim on June 12, more than

thirty days after the initial order.

      Furthermore, when the district court reviewed Wardell’s Rule 59(e) motion,

it considered his explanation for failure to comply: that prison officials held his

money order until after the fee deadline expired. Its conclusion that he did not

provide adequate justification for failing to comply with the initial order,

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particularly in light of having never received the initial partial filing fee, was not

an “arbitrary, capricious, whimsical, or manifestly unreasonable judgment.”

Consequently, the district court acted within its discretion in dismissing Wardell’s

claim.

         We note that the complaint was dismissed without prejudice and Wardell is

free to refile consistent with court orders and the rules of civil procedure.

                                   III. Conclusion

         For the foregoing reasons, we AFFIRM the district court’s dismissal and

denial of relief under Rule 59(e) for failure to pay the initial partial filing fee.

         We also GRANT the request for leave to proceed without prepayment of

the appellate filing fee and remind Mr. Wardell of his continuing obligation to

make partial payments until the filing fee is paid in full. See 28 U.S.C.

§ 1915(b)(1)-(2).

                                                      Entered for the Court

                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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