                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     February 2, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 PH ILIP BUTLER, in his personal
 capacity,

              Petitioner-A ppellant,
                                                        No. 06-1407
 v.                                                     (D . of Colo.)
                                                 (D.C. No. 06-B-518(M EH))
 JAM ES BUTIERRES, in his personal
 capacity,

              Respondent-Appellee.



                           OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES Circuit Judges. **


      Philip Butler appeals the district court’s dismissal with prejudice of his 42

U.S.C. § 1983 claim for failure to follow an earlier court order regarding Butler’s

in forma pauperis payment plan. Since there was no showing Butler w illfully

violated the order, we VACATE the dismissal and REM AND for reconsideration.



      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
                                   I. Background

      Philip Butler was granted leave to proceed in form a pauperis on a § 1983

claim in M arch of 2006. A payment plan was established per 28 U.S.C.

§ 1915(b). The court explained it would dismiss the action without prejudice if

the prisoner failed to make his monthly payment or failed to show cause as to why

he could not pay. 1

      After Butler failed to make monthly payments for M ay and June on his

present claim and failed to show cause for the missing payments, a second court

order issued on July 13, 2006 directed Butler “by the 15th day of each month

hereafter” to either (1) make the required monthly payment, or (2) file a certified

copy of his inmate trust fund account statement demonstrating why he need not

make payment under 28 U.S.C. § 1915(b)(2). Doc. 18 at 2. The court warned

that failure to comply with the order could lead to dismissal of his case without

further notice.

      On August 10, 2006, the magistrate judge who issued the July 13 order

recommended dismissing Butler’s claim with prejudice for failure to comply. The

magistrate judge explained the July order required payment from Butler or a show

of cause “by the 15th day of each month (which would include the month of

July)” and Butler had not complied for the month of July. Doc. 30 at 1. The



      1
        It further noted that it could dismiss the action if Butler failed to stay
current with his payment obligations in any prior actions.

                                          -2-
district court accepted the magistrate judge’s recommendation and dismissed the

action with prejudice. Butler subsequently complied with the order for the month

of August. The district court held that Butler had not shown “the existence of a

reasoned, nonfrivolous argument . . . in support of the issues raised on appeal”

and denied Butler’s M otion for Leave to Proceed on Appeal in form a pauperis

pursuant to Federal Rule of Appellate Procedure Rule 24. Doc. 39. Butler

renews his in form a pauperis motion to this court and appeals the low er court

dismissal of his claim with prejudice.

                                   II. Discussion

      Dismissal with prejudice “represents an extreme sanction appropriate only

in cases of willful misconduct.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th

Cir. 1992). It does not appear the district court considered whether the July

order’s language requiring payment or a show of cause “by the 15th day of each

month hereafter” includes the month of July as the magistrate judge claimed. If

the plain language of the order did not include the month of July or was

ambiguous as to July’s inclusion, Butler did not willfully violate the order. In

addition, it is unclear from the record whether Butler received the order in time to

comply with the July 15 deadline, even if the order included July. W e remand

this issue for the district court to consider w hether dismissal with prejudice was

warranted.




                                         -3-
      Butler further challenges the legality of the July order, contending it

conflicts with 28 U.S.C. § 1915(b)(2). The district court considered and rejected

Butler’s argument. W e agree with the district court. Butler argued § 1915(b)(2)’s

command that the agency holding a prisoner forward the prisoner’s in forma

pauperis payments conflicted with the order requiring Butler, the prisoner, to

make payment or show cause. 2 But § 1915(b)(2) also clearly states “the prisoner

shall be required to make monthly payments . . . credited to the prisoner’s

account.” The magistrate judge did not err in requiring the prisoner to make sure

his fees were paid or to explain why they were not paid. If the Colorado

Department of Corrections where he is held is refusing to forward the payments,

Butler may offer that refusal as cause for failure to pay— thereby complying with

the order.

                                  III. Conclusion

      Appellant’s request for leave to proceed on appeal without the prepayment

of fees under 28 U.S.C. § 1915 is GRANTED. An assessment order has already

been entered under § 1915(b) directing Philip Butler to make partial payments

toward the filing fee. W e remind Butler of his obligation to continue making



      2
       “After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding month’s
income credited to the prisoner’s account. The agency having custody of the
prisoner shall forward payments from the prisoner's account to the clerk of the
court each time the amount in the account exceeds $10 until the filing fees are
paid.” 28 U.S.C. § 1915(b)(2).

                                         -4-
partial payments of the appellate filing fee pursuant to 28 U.S.C. § 1915(b), in

addition to his partial payments for his § 1983 action below, until the entire fee is

paid. W e VACATE the dismissal with prejudice and REM AND for consideration

by the district court whether Butler willfully violated the plain language of the

July order and whether dismissal with prejudice was appropriate.

                                                Entered for the Court

                                                Timothy M . Tymkovich
                                                Circuit Judge




                                          -5-
