                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    July 7, 2008

                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court


    PATRICK M. HAWKINSON,

                Plaintiff-Appellant,

    v.                                                    No. 07-1377
                                             (D.C. No. 1:04-CV-01271-EWN-BNB)
    JAMES MONTOYA; ESTATE OF                               (D. Colo.)
    OPAL WILSON; R KEENER;
    ROBERT J.M. SCRANTON,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Patrick M. Hawkinson appeals pro se from the district court’s dismissal of

his civil rights action without prejudice, based on his failure to comply with court

orders, and from the court’s denial of his post-judgment motion under Fed. R.

Civ. P. 60(b). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                     Background

      Mr. Hawkinson is a prisoner incarcerated in a Colorado state correctional

facility. He filed a prisoner complaint and a motion to proceed in forma pauperis

in the district court pursuant to 28 U.S.C. § 1915. A magistrate judge granted his

motion on June 21, 2004, directing the clerk to commence a civil action, and

ordering plaintiff to pay an initial partial filing fee of $12. The order stated that

he “shall be required to pay the full amount of the required $150.00 filing fee

pursuant to § 1915(b)(1) regardless of the outcome of this action.” 1 Aplee. Suppl.

App. at 38-39. The order provided further that

      after payment of the initial partial filing fee, the plaintiff shall be
      required to make monthly payments of twenty percent (20%) of the
      preceding month’s income credited to his trust fund account or show
      cause each month . . . why he has no assets and no means by which
      to make the monthly payment. . . .

             [I]f within the time allowed the plaintiff fails to have the
      designated initial partial filing fee or monthly payments sent to the
      clerk of the court or to show cause why he has no assets and no
      means by which to pay the designated initial partial filing fee or
      make the monthly payments, the Prisoner Complaint will be
      dismissed without prejudice without further notice.

Id. at 39-40. In order to show cause, plaintiff was ordered to “file a current

certified copy of his trust fund account statement.” Id. at 39. In July, the




1
      28 U.S.C. § 1915(b)(1) provides that “if a prisoner brings a civil action . . .
in forma pauperis, the prisoner shall be required to pay the full amount of a filing
fee.”

                                          -2-
magistrate judge granted plaintiff’s motion to waive payment of the initial $12

filing fee payment, but reminded him of his ultimate obligation to pay the full fee.

       Mr. Hawkinson’s action was pending in the district court from June 2004 to

August 2007, a total of thirty-eight months. In fourteen of those months–more

than one-third of the time–he failed to comply with the court’s order to make a

partial filing-fee payment or show cause why he could not do so. The magistrate

judge issued four separate show-cause orders reiterating plaintiff’s obligation

under the court’s orders and warning him that his failure to comply could result in

dismissal of his case. In a show-cause order entered January 24, 2006, the

magistrate judge advised Mr. Hawkinson:

              Nor is it acceptable for plaintiff to meet his monthly
       obligations only when specifically called upon by the court through
       an order to pay or show cause. Such a procedure unreasonably
       burdens the court. Consequently, hereafter I will require plaintiff, on
       or before the 15th day of each month and without any further notice
       from or order of the court, either to make the required monthly
       payment for the preceding month or to file a certified copy of his
       inmate trust fund account statement for the preceding month
       demonstrating that he has no assets and no means by which to make
       the monthly payment. If plaintiff fails hereafter to comply with this
       requirement in any month prior to the date on which the filing fee is
       paid in full, I will recommend that the case be dismissed for failure
       to comply with this order and with the order allowing plaintiff to
       proceed in forma pauperis.

Id. at 79.

       In response to each of the district court’s show-cause orders, plaintiff

belatedly filed an account statement. He sometimes contended that he had not


                                         -3-
missed any monthly filings, and he sometimes admitted that he had. At one point

he offered, as his excuse for failing to file his account statements, his heavy load

of other litigation matters. He asserted that, in any event, he had never had

sufficient funds to pay the filing fee. Following each show-cause order,

Mr. Hawkinson would make his monthly filings for a while, but then, as the

magistrate judge observed, he “returned to his old ways.” Id.

      When Mr. Hawkinson again failed to make a payment or file account

statements in May and June 2007, the magistrate judge issued a recommendation

that his case be dismissed without prejudice under Fed. R. Civ. P. 41(b), which

provides in part, “If the plaintiff fails . . . to comply with these rules or a court

order, a defendant may move to dismiss the action or any claim against it.” 2 In

considering whether dismissal was appropriate, the magistrate judge applied the

Ehrenhaus factors: (1) the amount of actual prejudice to the opposing party;

(2) the degree of interference with the judicial process; (3) the litigant’s

culpability; (4) whether the litigant was warned in advance that dismissal was a

likely sanction; and, (5) whether a lesser sanction would be effective. Ehrenhaus

v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). He found that any prejudice




2
       We have held that a district court may dismiss a case sua sponte under
Rule 41(b). See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir.
2007).

                                           -4-
suffered by the defendants was minimal and insufficient on its own to support

dismissal. As to the second factor, the magistrate judge noted:

      Rather than attending to the merits of this case and other cases, I
      have been required to devote attention to this plaintiff’s failure to
      comply with Court orders and §1915(b). . . . [T]he plaintiff’s failure
      to comply with his obligation to make payments or show cause
      demonstrates a lack of respect for the judicial process and the law; it
      undermines the uniform application of the rules towards in forma
      pauperis litigants, many of whom comply with their obligations; and
      it substantially interferes with the ability of the Court to exercise its
      case administration authority. Where, as here, a party flaunts a
      court’s orders or complies only when it is convenient, the
      fundamental mechanism by which justice is administered is harmed.

Id. at 102-03. The magistrate judge found that plaintiff alone was responsible for

his noncompliance, that he had ample warning his case would be dismissed if he

failed to comply, and that no sanction less than dismissal would be effective.

      In response to the magistrate judge’s recommendation, on July 3, 2007,

Mr. Hawkinson filed an account statement for the period from May 29 through

June 29. He did not address his failure to make a payment or file an account

statement in May, but he asserted that he had submitted an account statement on

June 8 and for reasons unknown to him it was not in the court’s file. His counsel 3

filed objections to the magistrate judge’s recommendation three days later on July

6, attaching the same account statement submitted directly by Mr. Hawkinson.



3
      Plaintiff’s counsel entered an appearance on May 31, 2007, after being
appointed by the district court to represent Mr. Hawkinson in the trial in this case,
which was scheduled to begin on August 23, 2007.

                                          -5-
His counsel added that “[a]n inmate is not able to lay his hands on the

information required by the Court on short notice. However, counsel will

endeavor to have the Plaintiff make his record available to counsel, on a monthly

basis, so that proof can be provided to the Court pursuant to this Court’s order.”

Id. at 108.

      On August 10, Mr. Hawkinson’s counsel filed an unopposed motion to

continue the trial date, explaining that he had suffered a stroke on July 2 that

affected his ability to speak, write, and use other forms of communication.

Mr. Hawkinson did not file an account statement on or before August 15, 2007.

On August 16, the district court accepted the magistrate judge’s recommendation

and dismissed the case without prejudice. The court noted that plaintiff’s

objections to the magistrate judge’s recommendation, filed by himself and by

counsel, failed to contend either that its factual contentions or its legal analysis

were incorrect, but instead attempted to belatedly comply with the court’s orders

by submitting an uncertified account statement. The court concluded:

      The requirement of a certified statement showing an inability to pay
      is a simple requirement. Other inmates comply without incident, and
      there is no plausible reason for Plaintiff’s persistent non-compliance.
      Plaintiff cannot defiantly flout court orders without consequence to
      his case, and the magistrate judge has recommended an appropriate
      consequence.

Id. at 115.




                                          -6-
      Mr. Hawkinson filed a pro se motion to reconsider under Fed. R. Civ.

P. 60(b). He asked the court to consider additional objections to the magistrate

judge’s recommendation, asserting that his counsel’s stroke prevented him from

filing complete objections. He asserted on the merits that, despite his regular

requests to the Department of Corrections, he did not receive an account

statement every month, but that he had diligently filed every statement that he had

received. He argued that the dismissal order was the first time that the court had

distinguished between certified and uncertified account statements, and he

asserted that the court never previously rejected any uncertified statements that he

had filed. He also claimed that a new prison policy made it difficult to obtain

certified account statements.

      Plaintiff attached to his motion a certified, six-month account statement

showing a negative balance, which he contended should remedy any error he had

made. He pointed to the numerous account statements he did file and asserted

that he had never acted in bad faith or benefitted in any way from his failures to

file monthly account statements. He argued that, after five dispositive motions

had been resolved in his favor, discovery was complete, and the matter was set for

trial with counsel appointed to represent him, dismissal of his case was

unwarranted based upon his failure to pay a $150 filing fee that he could not

afford to pay. Finally, he argued that the court did not have authority under




                                         -7-
28 U.S.C. §§ 1915 or 1915A to dismiss his case on the grounds cited in the

court’s order.

      The district court denied plaintiff’s Rule 60(b) motion in a minute order,

without discussion. He timely appealed the district court’s dismissal order and its

denial of his Rule 60(b) motion.

                                 Standard of Review

      “We review for an abuse of discretion the district court’s decision to

impose the sanction of dismissal for failure to follow court orders . . . .” Gripe v.

City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002). “An abuse of discretion

occurs when a district court makes a clear error of judgment or exceeds the

bounds of permissible choice in the circumstances. This occurs when a district

court relies upon an erroneous conclusion of law or upon clearly erroneous

findings of fact.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d

1135, 1143 (10th Cir. 2007) (citation, quotation, and brackets omitted). “Rule

41(b) involuntary dismissals should be determined by reference to the Ehrenhaus

criteria.” 4 Gripe, 312 F.3d at 1188 (quotation omitted). “It is within a court’s


4
       The district court may not have been required to apply the Ehrenhaus
factors in this case because it dismissed the action without prejudice.
See Ecclesiastes, 497 F.3d at 1143 n.10 (noting when dismissal is without
prejudice, “a district court need not follow any particular procedures” (quotation
omitted)). But a dismissal without prejudice can have the practical effect of a
dismissal with prejudice if the statute of limitations has expired. See Gocolay v.
N.M. Fed. Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir. 1992). Here,
                                                                        (continued...)

                                          -8-
discretion to dismiss a case if, after considering all the relevant factors, it

concludes that dismissal alone would satisfy the interests of justice.” Ehrenhaus,

965 F.2d at 918.

      We also review for an abuse of discretion the district court’s denial of a

Rule 60(b) motion. Servants of the Paraclete v. Does, 204 F.3d 1005, 1009

(10th Cir. 2000). “A district court has discretion to grant relief as justice requires

under Rule 60(b), yet such relief is extraordinary and may only be granted in

exceptional circumstances.” Id. (quotations omitted).

      Finally, we construe plaintiff’s pro se appeal arguments liberally.

See de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

                                      Discussion

      Mr. Hawkinson argues that the district court abused its discretion in

dismissing his case because none of the statutory criteria for dismissal under

§§ 1915(e)(2) or 1915A(b) were met. Section 1915(e)(2) provides:

      Notwithstanding any filing fee, or any portion thereof, that may have
      been paid, the court shall dismiss the case at any time if the court
      determines that--
            (A) the allegation of poverty is untrue; or
            (B) the action or appeal--
                   (i) is frivolous or malicious;


4
 (...continued)
Mr. Hawkinson does not contend that the dismissal was, in effect, with prejudice
because the statutes of limitations have expired on his claims. However, because
the district court applied the Ehrenhaus criteria, we review the propriety of the
dismissal under those factors.

                                           -9-
                      (ii) fails to state a claim on which relief may be
                      granted; or
                      (iii) seeks monetary relief against a defendant who
                      is immune from such relief.

28 U.S.C. § 1915(e)(2). Section 1915A(b) similarly provides:

         Grounds for dismissal.--On review, the court shall identify
         cognizable claims or dismiss the complaint, or any portion of the
         complaint, if the complaint--
               (1) is frivolous, malicious, or fails to state a claim upon which
               relief may be granted; or
               (2) seeks monetary relief from a defendant who is immune
               from such relief.

28 U.S.C. § 1915A(b). In making this argument, however, plaintiff ignores the

basis for the district court’s dismissal. Rather than relying on §§ 1915(e)(2) or

1915A(b), the court dismissed the case under Fed. R. Civ. P. 41(b), based upon

his failure to comply with court orders–specifically, its orders requiring him to

make partial filing fee payments each month or to show cause why he could not

do so.

         Mr. Hawkinson contends further that the district court exceeded its legal

authority by imposing a requirement over and above the requirements set forth in

§§ 1915 and 1915A to maintain an action without prepayment of the filing fee.

He relies on the Supreme Court’s decision in Jones v. Bock, 549 U.S. 199,

127 S. Ct. 910 (2007). In Jones, the Court acknowledged that exhaustion of

remedies is a requirement under the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). Id. at 918. But it held that district courts could not depart from the


                                           -10-
Federal Rules by applying a heightened pleading standard requiring a prisoner to

plead exhaustion of remedies in his complaint. See id. at 919. Mr. Hawkinson

argues that the district court, therefore, could not order him to submit his account

statements each month, because §§ 1915 and 1915A include no such requirement

and do not provide for dismissal upon his failure to do so. Because he makes this

argument for the first time on appeal, we decline to consider it. See Bancamerica

Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798-99 (10th Cir.)

(declining to consider new theory on appeal, even one “that falls under the same

general category as an argument presented [in the district court] or presents a

theory that was discussed in a vague and ambiguous way” (quotations omitted)),

amended on other grounds, 103 F.3d 80 (10th Cir. 1996).

      Regarding application of the Ehrenhaus criteria, Mr. Hawkinson argues that

the district court abused its discretion in finding that he alone was culpable for his

failures to file his account statements. He asserts that he made “every reasonable,

substantial and good-faith effort to fully comply with the Court’s Order(s) by

filing his monthly account statements as, when, and if he received it from the

Colorado Department of Corrections,” but “his efforts were simply obstructed by

prison bureaucracy and red tape.” Aplt. Opening Br. at 12, 15. He made this

claim for the first time in the district court in his Rule 60(b) motion, asserting that

it was not included in his objections to the magistrate judge’s recommendation

because his counsel had suffered a stroke. But even his own separately-filed

                                          -11-
objections made no such assertion. Furthermore, in response to four separate

show-cause orders, he never once claimed that, despite his best efforts, he was

having difficulty obtaining his account statements. We conclude that

Mr. Hawkinson has failed to show an abuse of discretion by the district court

based upon his extremely tardy claim of difficulty in obtaining his account

statements from prison authorities.

      Mr. Hawkinson also asserts, regarding his culpability, that the district

court’s dismissal order was the first time that it ever distinguished between

certified and uncertified account statements. The court did admonish plaintiff for

filing an uncertified account statement in opposition to the magistrate judge’s

recommendation. And he is correct that the court had not previously taken issue

with the few uncertified statements that he filed. But we disagree that the district

court failed to notify him that his account statements must be certified. It

specifically stated that requirement in its initial order authorizing commencement

of the action, and it reiterated the requirement in each show-cause order. In any

event, the magistrate judge’s recommendation, which the district court adopted,

was based on plaintiff’s persistent failures to file any account statement, whether

certified or not. We hold that the district court did not abuse its discretion in




                                         -12-
finding Mr. Hawkinson culpable for his failures to comply with the court’s

orders. 5

       Plaintiff argues further that the district court abused its discretion in

dismissing his case because he never had sufficient funds to pay the filing fee and

he remedied any previous error by filing a certified, six-month account statement

with his Rule 60(b) motion. We construe this as an argument that, under the

second Ehrenhaus factor, plaintiff’s failure to comply with the court’s orders did

not sufficiently interfere with the judicial process to warrant dismissal. He

attempts to distinguish his case from Cosby v. Meadors, 351 F.3d 1324 (10th Cir.

2003), on which the magistrate judge relied in his recommendation. As in this

case, the district court in Cosby entered an order requiring the plaintiff to either

make monthly partial filing fee payments or show cause why he could not do so

by filing his account statements. Id. at 1327-28. We affirmed dismissal based on

Mr. Cosby’s violation of that order. Id. at 1326.




5
       Mr. Hawkinson’s contention that the district court’s dismissal was based
entirely on his failure to file account statements in June, July, and August 2007 is
not supported by the record, which makes clear that the magistrate judge’s
recommendation, as adopted by the district court, was the result of his repeated
failures to follow the court’s orders. Nor will we consider on appeal new
evidence regarding his June 2007 filing, which he attached as an exhibit to his
appeal brief but never presented to the district court. See Boone v. Carlsbad
Bancorporation, Inc., 972 F.2d 1545, 1549 n.1 (10th Cir. 1992) (refusing to
consider evidence not before the district court when rulings made).

                                          -13-
      Mr. Hawkinson contends that the plaintiff’s conduct in Cosby was

substantially more egregious than his conduct, because Mr. Cosby not only failed

to file his account statements, he had funds to make filing fee payments that he

attempted to hide from the court. See id. at 1328-31. But in Cosby we cautioned

“that our review of Plaintiff’s egregious misconduct should not be interpreted as

suggesting that equally egregious misconduct is necessary to justify dismissal

with prejudice.” Id. at 1334. Moreover, despite plaintiff’s protestations that he

never had sufficient funds in his account to make even a partial filing fee

payment, 6 we emphasized in Cosby that

      [t]he issue here is not money per se. The amounts at stake . . . might
      not seem significant to some outside prison walls. The issue, rather,
      is respect for the judicial process and the law. Plaintiff must lose his
      right to pursue his claim in court because of his utter unwillingness
      to make the minor sacrifices required by statute and by the repeated
      directives of a patient district court.




6
       We note that our review of the record indicates that Mr. Hawkinson did, at
times, appear to have sufficient funds to make a partial filing fee payment. He
filed a letter with the court in May 2005 indicating that he had total income in
March, April, and May of that year of almost $250. He explained in the letter
that $88 intended to be used for both restitution and a partial filing fee payment in
this case had been misapplied entirely to restitution. But he failed to explain how
he spent the remainder of his income during those months. Nor did he file an
account statement with his letter. A statement he filed two months later showed
he had a $45 money order credit and a $25 canteen order in May. In addition, in
July and August of that year he had money order credits totaling $70 and over $50
in canteen orders. But because the district court did not rely on this evidence in
dismissing plaintiff’s case, we do not consider it in determining whether the court
abused its discretion in doing so.

                                        -14-
Id. at 1326. We conclude that the district court did not abuse its discretion in

finding that Mr. Hawkinson’s persistent noncompliance with its orders either to

make his filing fee payments or show cause by filing certified account statements

sufficiently interfered with the court’s ability to exercise its case-administration

authority to warrant dismissal.

      Finally, Mr. Hawkinson argues that the district court abused its discretion

in dismissing his case after his counsel filed objections to the magistrate judge’s

recommendation under the lingering effects of a stroke. He contends that, rather

than entering the dismissal, the district court should have either given his counsel

time to recover, or appointed other counsel to properly object to the

recommendation. But in his Rule 60(b) motion plaintiff presented the arguments

that he contends his counsel would have made but for his illness, and to the extent

that he raises those arguments on appeal, we have reviewed them and found no

abuse of discretion by the district court. We therefore hold that the district court

did not abuse its discretion in dismissing Mr. Hawkinson’s action without

providing his counsel an opportunity to file further objections. We reject on this

same basis his argument that the district court abused its discretion by denying his

Rule 60(b) motion without discussion.

                                     Conclusion

      We conclude that the district court did not make a clear error of judgment

or exceed the bounds of permissible choice under the circumstances in dismissing

                                         -15-
Mr. Hawkinson’s action. He has failed to show that the court relied upon an

erroneous conclusion of law or upon clearly erroneous findings of fact.

Therefore, the judgment of the district court is AFFIRMED. We GRANT

plaintiff’s request for leave to proceed without prepayment of the appellate filing

fee, and we remind him of his continuing obligation to make partial payments

until the entire fee has been paid in full. See 28 U.S.C. § 1915(b)(1)-(2).


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                         -16-
