                                                                  FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                           September 10, 2009
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                              Clerk of Court
                         FOR THE TENTH CIRCUIT


LEO J. SCHWARTZ, III,

             Plaintiff-Appellant,

v.                                                      No. 08-2231
                                           (D.C. No. 1:08-CV-00228-MCA-RLP)
CLINT WELLBORN, Socorro County                           (D. N.M.)
District Attorney, in his individual and
official capacities; STACEY A.
WARD, in her individual and official
capacity as Socorro County Chief
District Attorney; SHANE ARTHUR;
RICHARD MATTHEWS; ART
ORTIZ; NATHAN LUCERO; KEVIN
BRUNO; SOCORRO POLICE
DEPARTMENT; ROCKY
FERNANDEZ, in his individual and
official capacity; ANGEL GARCIA,
in her individual capacity; JOEL
HALEY, in his individual capacity;
MARTIN BENAVIDEZ, in his
individual and official capacity;
LAWRENCE MONTANO, in his
individual and official capacity;
LAWRENCE ROMERO, in his
individual and official capacity;
REBEKAH GONZALES, in her
individual and official capacity;
JOHN ARMIJO, in his individual and
official capacity,

             Defendants-Appellees.
                           ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



      Leo J. Schwartz III, a former New Mexico state prisoner proceeding pro se,

appeals the district court’s order dismissing his 42 U.S.C. § 1983 action for

failure to show cause why he should be excused from paying the full filing fee

within thirty days. We reverse and remand.

                                          I.

      While incarcerated, Mr. Schwartz submitted his civil-rights complaint to

the district court alleging violation of his constitutional rights during state-court

criminal proceedings concerning the murder of his wife. He also filed a

prisoner’s motion to proceed under 28 U.S.C. § 1915(b) without prepayment of

the filing fee, accompanied by an affidavit, copies of his prisoner-account

statements, and a financial certificate. Noting that Mr. Schwartz paid the $350

filing fee in another action, the magistrate judge ordered Mr. Schwartz to pay the



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination 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 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.

                                          -2-
full filing fee within twenty days or show cause why the payment should be

excused. The magistrate judge, however, granted the motion to proceed under

§ 1915(b).

      Rather than a direct response to the show-cause order, Mr. Schwartz filed a

motion for a continuance. Among other things, the motion requested an extension

of time to accumulate funds to pay the filing fee. The magistrate judge granted

the continuance and gave the plaintiff an additional 30 days to either pay the

filing fee or show cause why the complaint should not be dismissed.

Mr. Schwartz’s responsive filing this time was a “Motion to Cure Deficiency.” R.

at 145. He asserted that he had not yet received his 20¢ per hour wages for his

prison job, but that he would be able “to secure the remainder of the amount owed

on the filing fee” after his approaching date of release. Id. at 146.

      The district court found this response unsatisfactory. It observed that in

Mr. Schwartz’s earlier-filed action, which seemed to duplicate the defendants and

claims in the instant case, he listed assets and paid the filing fee in a single

payment. 1 Concluding that Mr. Schwartz had “failed to show cause why he

should be excused from paying the filing fee,” the district court dismissed the

complaint without prejudice. Id. at 152.




1
    That case, Schwartz v. Socorro County Det. Ctr., No. 07-cv-01106-RB-
GBW, remains pending in district court.

                                           -3-
      Still a prisoner, Mr. Schwartz filed a notice of appeal, along with a motion

and affidavit to proceed ifp on appeal without prepayment of fees under 28 U.S.C.

§ 1915(b). The district court did not rule on that motion. After commencing the

appeal, Mr. Schwartz was released from custody.

                                         II.

      We review a dismissal for noncompliance with court orders for abuse of

discretion. 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).

      “Under the 1996 Prison Litigation Reform Act (PLRA), “if a prisoner

brings a civil action or files an appeal in forma pauperis, the prisoner shall be

required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). The

statute “also establishes a prepayment scheme, including an initial payment of a

portion of the funds available in a prisoner’s account and subsequent installments

based on fixed percentages of the amount in the prisoner’s account when the full

fee is not initially paid.” In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997).

(citing § 1915(b)(2)).




                                         -4-
       Mr. Schwartz followed provisions of the PLRA by filing a motion to

proceed in forma pauperis as a prisoner under § 1915, an accompanying affidavit

purportedly demonstrating his inability to pay the filing fee, and a certified copy

of his inmate account statement. See 28 U.S.C. § 1915(a)(1)-(2). The district

court granted the motion. Nevertheless, it dismissed Mr. Schwartz’s case for

failure to show cause why he should be excused from prepayment of the full

filing fee.

       At the time Mr. Schwartz filed his motion, his payment obligations were

dictated by statute. Upon qualifying as an indigent prisoner, he was “ultimately”

obligated to “‘pay the full amount of the filing fee.’” Cosby, 351 F.3d at 1326

(quoting § 1915(b)(1)). But he did not need to “pay federal court filing fees in

full prior to initiating litigation.” Id. The order of dismissal, coupled with the

grant of in-forma-pauperis status, is contrary to provisions of the PLRA.

       The district court’s finding of poverty is therefore unclear. It is

conceivable that the court was applying 28 U.S.C. §1915(e)(2) to its examination

of Mr. Schwartz’s complaint and affidavit. Under that provision, an action should

be dismissed “at any time” upon the court’s determination “the allegation of

poverty is untrue” or the action is “frivolous or malicious” or “fails to state a

claim on which relief may be granted.” Id. 2


2
       We note that courts have dismissed a duplicative complaint as frivolous.
                                                                     (continued...)

                                          -5-
       In the unusual circumstances of this case, we reverse the district court’s

order and remand for a determination of his poverty, taking into account the

plaintiff’s present circumstances. We do not address Mr. Schwartz’s contention

that his release from prison means that provisions of the PLRA no longer apply to

him.

                                         IV.

       We REVERSE the district court’s order of dismissal without prejudice and

REMAND for further proceedings in accordance with this opinion. We GRANT

Mr. Schwartz’s motion to proceed in forma pauperis on appeal.



                                               Entered for the Court


                                               Deanell Reece Tacha
                                               Circuit Judge




2
 (...continued)
See, e.g., Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (dismissing
appeal with application for ifp status as frivolous because “it involved a
duplicative action arising from the same series of events and alleging many of the
same facts as an earlier suit”); Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984)
(“The courts are not required to entertain redundant lawsuits, whether or not the
plaintiff can pay the filing fee.”).

                                         -6-
