                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 24, 2009
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                     TENTH CIRCUIT



 RUDY STANKO,

           Plaintiff-Appellant,
 v.                                                           No. 09-1104
 BLAKE DAVIS, individually and in his            (D.C. No. 07-CV-01791-ZLW-BNB)
 official capacity as a Warden; MICHAEL                       (D. Colo.)
 K. NALLEY, individually and in his
 official capacity as Regional Director;
 HARLEY LAPPIN, individually and in
 his official capacity as Director,
 DEFENDANTS 1X THROUGH 6X,
 individually and in he/she’s [sic] official
 capacity,

           Defendants-Appellants.



                                  ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Rudy Stanko filed a complaint in forma pauperis (“IFP”) alleging that defendant

prison officials violated his constitutional rights. Pursuant to 28 U.S.C. § 1915(b)(1), the

district court ordered Stanko to pay the $350 filing fee, divided into a $64 initial partial

filing fee and the remainder in installments. Although Stanko paid the initial partial filing

fee, the court did not receive any subsequent payments. After issuing an order directing

Stanko to show cause for his failure to make the payments or to “show cause . . . why he

has no assets,” R. at 14, the district court dismissed Stanko’s complaint without prejudice.

Stanko now appeals pro se. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

                                               I

       Stanko, a federal prisoner, filed a complaint against Blake Davis, Michael Nalley,

Harley Lappin, and six unnamed defendants. On September 18, 2007, the district court

granted Stanko’s request to proceed IFP, but also ordered Stanko to pay the $350 filing

fee in installments regardless of the outcome of his action. In this order, the district court

instructed Stanko “either to make the required monthly payments or to show cause each

month why he has no means by which to make the monthly payment.” R. at 49–50. The

district court also instructed Stanko to provide a current certified copy of his inmate trust

fund account statement and warned him that failure to comply with the order would result

in the dismissal of his complaint.

       Stanko objected to the September 18, 2007 order. The district court overruled this

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objection. Stanko appealed; we dismissed this appeal for failure to prosecute. On

January 2, 2008, Stanko paid the $64 initial partial filing fee. The district court received

no subsequent payments.

       On December 23, 2008, the district court ordered Stanko to show cause for his

failure to comply with the September 18, 2007 order. Again, the district court warned

Stanko that if he did not show cause, the district court would dismiss his complaint.

Stanko responded that he made payments from September 2008 to December 2008, and

was then out of funds. R. at 34. Stanko indicated that he made payments totaling

$423.79. Id. Stanko also submitted statements from his trust account indicating court

payments from September to December 2008.

       After reviewing Stanko’s response, the district court dismissed his complaint

without prejudice. The court noted, “Although the uncertified trust fund account

statement . . . that Mr. Stanko attaches to his response does show payments made from his

trust fund account, none of those payments have been received by this Court in this

action.” R. at 51. Based on Stanko’s failure to explain why he did not make monthly

payments or show cause why he was unable to do so, the district court found that Stanko

failed to show cause and failed to follow the September 18, 2007 order.

       Based on these failures, the district court applied the five factors established in

Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), to dismiss Stanko’s complaint

under Federal Rule of Civil Procedure 41(b). The factors are “(1) the degree of actual

prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the

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culpability of the litigant; (4) whether the court warned the party in advance that dismissal

of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser

sanctions.” 965 F. 2d at 921 (internal citations, quotation and alterations omitted). First,

the district court found that there was insufficient prejudice to the defendants to warrant

dismissal. Second, the court found interference with the judicial process because

“[r]ather than attending to the merits of this and other cases on the Court’s docket, the

Court has been required to devote attention to [Stanko’s] failure to comply with a Court

order and with the requirements of 28 U.S.C. § 1915(b).” R. at 55. The court also found

Stanko’s conduct evidenced a lack of respect for the judicial process. Third, the district

court found Stanko culpable because he “fail[ed] to address his failure to show cause to

[the district] Court if he was unable to make monthly filing fee payments; the copy he

provide[d] of his trust fund account . . . only covers a portion of the time in question . . . .”

R. at 55–56. Fourth, the district court noted that it warned Stanko of the possibility of

dismissal if he failed to follow the court’s orders. Fifth, the district court found that

because Stanko proceeds IFP, a monetary sanction would be ineffective. Weighing these

factors, the district court dismissed Stanko’s complaint.

       On appeal, Stanko raises three arguments. First, Stanko argues that the dismissal

of his complaint violates his statutory rights under 28 U.S.C. § 1915. Second, Stanko

argues that the dismissal violates his rights under the Seventh Amendment. Third, Stanko

argues that the dismissal violates his constitutional rights to due process. Because Stanko

proceeds pro se, we construe these arguments liberally. Weinbaum v. City of Las Cruces,

                                               4
N.M., 541 F.3d 1017, 1029 (10th Cir. 2008).

                                               II

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

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.

       Construed liberally, Stanko argues that the district court abused its discretion in

dismissing his case because: (1) it ignored that funds were removed from his account

from September to December 2008; and (2) improperly placed the administrative burden

of paying the filing fees on Stanko. Stanko highlights the statutory language that “[t]he

court shall assess and, when funds exist, collect, as a partial payment of any court fees

required by law” and “[t]he agency having custody of the prisoner shall forward

payments from the prisoner's account to the clerk of the court.” 28 U.S.C. 1915(b)(1),

(2). These arguments, however, ignore additional bases for the district court’s dismissal.

                                               5
       The district court dismissed the case under Fed. R. Civ. P. 41(b) for 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. Neither Stanko’s present

statutory argument, his constitutional arguments, nor his submission of account records

from September 2008 to December 2008 addresses his failure to follow the court’s orders

from January 2008 to September 2008. Indeed, Stanko’s response to the show cause

order implicitly acknowledged his failure to comply with the district court’s order from

January 2008 to September 2008. R. at 34 (“Beginning in the month of September 2008,

I consented to the Bureau of Prisons to use 40%, not 20%, of my trust account for

payment to the U.S. Courts . . . .” (emphasis added)).

       In sum, the district court ordered Stanko to make partial filing fee payments or to

show cause why he could not do so. For at least seven months, Stanko failed to follow

this order. The district court ordered Stanko to show cause for this failure. Stanko made

no effort to explain his failure regarding those seven months. The district court applied

the Ehrenhaus factors to dismiss Stanko’s complaint. On appeal, Stanko makes no

argument that the district court erred in its application of these factors. On review, we

discern no clear error of judgment or application of an impermissible choice.

Accordingly, we conclude that the district court did not abuse its discretion in dismissing

Stanko’s complaint.




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                                            III

       We affirm. Stanko’s motion for leave to proceed in IFP on appeal is denied, and

he is directed to comply with this court’s prior order entered April 28, 2009, by

continuing to make the payments directed therein.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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