                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 24, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 VICTOR ANDREW APODACA, SR.,

       Plaintiff - Appellant,

 v.                                                          No. 18-2069
                                                 (D.C. No. 1:18-CV-00108-MV-SMV)
 JOHN DOES, Inmates of New Mexico                             (D. N.M.)
 Corrections Department, Prisoners; NEW
 MEXICO CORRECTIONS
 DEPARTMENT; DAVID JABLONSKI;
 GEO GROUP, INC.; DAVID BOWEN;
 FNU GONZALES; FNU VIGIL; REGINA
 TRUJILLO, Library Paralegal;
 AMBERLY WARD; FNU NEWTON;
 JOHN/JANE DOE; FNU BROCK,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Pro se federal prisoner Victor Andrew Apodaca, Sr. appeals from the district

court’s order dismissing his prisoner civil rights complaint for failure to prosecute


      *
         After examining the briefs and appellate record, this panel has determined
that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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.
and comply with the court’s order. Exercising jurisdiction under 28 U.S.C. § 1291,

we DISMISS Mr. Apodaca’s appeal as frivolous, DENY his motion for leave to

proceed in forma pauperis on appeal, and impose a “strike” under 28 U.S.C. §

1915(g).

                                              I.

       Mr. Apodaca is currently incarcerated at the Northeast New Mexico Detention

Facility. In February 2018, he filed a complaint asserting, inter alia, that prison

officials violated his constitutional rights by confiscating his property during a

“shake down” at the facility. On the same day he filed the complaint, Mr. Apodaca

also submitted a motion seeking leave to proceed in forma pauperis.

       The district court granted Mr. Apodaca’s leave to proceed in forma pauperis.

As part of the order, the court ordered Mr. Apodaca to pay a partial fee of $13.75,

warning Apodaca that the case could be dismissed if no payment was made. Mr.

Apodaca did not pay the fee or otherwise respond to the order. Accordingly, on April

24, 2018, the district court issued an order dismissing the complaint without

prejudice under Fed. R. Civ. P. 41(b) for failure to prosecute and comply with court

orders. Order of Dismissal at 1. Because the defendants were never served or

summoned, there are no appellees in this appeal. This appeal followed.

                                             II.

       Mr. Apodaca challenges the district court’s dismissal of his complaint and its

assessment of a filing fee. We construe the filings of a pro se litigant liberally, see

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but our role is not to serve as

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his advocate, see Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Per 28

U.S.C. § 1915(b)(1), prisoners bringing civil rights actions must pay the filing fee. 28

U.S.C. § 1915(b)(1) sets forth the standard and allows courts to “assess” the payment of

partial fee (recognizing most prisoners can only pay the fee in partial payments). We

evaluate a dismissal under Rule 41(b) for abuse of discretion. Nasious v. Two Unknown

B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1161 (10th Cir. 2007)

(citations omitted).

       Because Mr. Apodaca failed to submit payment by the deadline and failed to

respond to the court order otherwise, this court finds that the district court did not

abuse its discretion in dismissing Apodaca’s case. See Olsen v. Mapes, 333 F.3d

1199, 1204 n.3 (10th Cir. 2003) (“Rule 41(b) . . . has long been interpreted to permit

courts to dismiss actions sua sponte for a plaintiff’s failure to prosecute or comply

with the . . . court’s orders.”). We also agree that the district court properly assessed

a filing fee under 28 U.S.C. § 1915(b)(1).

                                            III.

       Finally, because Mr. Apodaca seeks to proceed in forma pauperis on appeal,

we ask whether this appeal is frivolous. A litigant may only proceed in forma

pauperis if he shows a “reasoned, nonfrivolous argument on the law and facts in

support of the issues raised in the action.” Lister v. Dept. of Treasury, 408 F.3d

1309, 1312 (10th Cir. 2005); see also 28 U.S.C. § 1915(e)(2)(B). Additionally,

prisoners who bring frivolous appeals are assessed a strike under the Prison



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Litigation Reform Act. 28 U.S.C. § 1915(h). Mr. Apodaca failed to make any

nonfrivolous argument for reversal of the district court’s decision.

                                           IV.

       Based on the foregoing, we DISMISS Mr. Apodaca’s appeal as frivolous,

DENY his motion for leave to proceed in forma pauperis on appeal, and impose a

“strike” under 28 U.S.C. § 1915(g). We note that this newly imposed strike is Mr.

Apodaca’s third, which means he may not procced in forma pauperis in civil actions

before federal courts unless he is under imminent danger of serious physical injury. See

28 U.S.C. § 1915(g). Mr. Apodaca is reminded of his duty to pay the unpaid balance of

his filing fees in full immediately.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




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