                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS January 27, 2009

                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court


 BERNADETTE GALLEGOS,

               Plaintiff-Appellant,                      No. 08-1276
          v.                                         District of Colorado
 MATTHEW C. HOWARD; GRW                        (D.C. No. 1:08-CV-00819-ZLW)
 CORPORATION; GIL WALKER;
 STEVE HARGETT; STATE OF
 COLORADO DEPARTMENT OF
 CORRECTIONAL SERVICES; JOE
 ORTIZ; LARRY GRAHAM and JOHN
 DOE,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      The question presented is whether it was an abuse of discretion for the

district court to conclude that the appellant, a prisoner, was able to pay a $6.00


      *
        After examining the briefs and appellate record, this panel has determined
unanimously 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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
filing fee when her prison account indicated a negative balance for a particular

day shortly before the order.

       On May 22, 2008, a magistrate judge granted Bernadette Gallegos leave to

proceed in forma pauperis pursuant to the Prison Litigation Reform Act, 28

U.S.C. § 1915. A few days earlier, Ms. Gallegos filed a certified prison account

statement with the district court, indicating that she had a negative account

balance of -$4.06. Pursuant to 28 U.S.C. § 1915(b)(1), the magistrate judge

ordered Ms. Gallegos to pay an initial partial filing fee of $6.00 or show cause

why she was unable to do so. He warned Ms. Gallegos that the complaint and

action would be dismissed without further notice if she failed to either pay the

initial partial filing fee or show cause within thirty days.

       Ms. Gallegos failed to pay any portion of the filing fee or show that she

was unable to do so. Accordingly, on July 2, 2008, the district court signed an

order dismissing the action pursuant to Fed. R. Civ. P. 41(b), which was filed on

July 3, 2008. 1

           Ms. Gallegos, through counsel, filed a motion for reconsideration of

dismissal in the district court pursuant to Fed. R. Civ. P. 59(e), asserting, among

other things, that neither she nor her counsel had been aware that she was


       1
        Almost two weeks after the deadline had passed, Ms. Gallegos’ counsel
made a partial filing fee payment of $30. It was not an abuse of discretion for the
district court to base its dismissal order on fees paid (or not paid) during the
allotted period of time for doing so.

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required to arrange for filing fee payments to be made from her inmate account.

The district court denied the motion for reconsideration. The court noted that the

magistrate judge’s order had explicitly directed her to pay the initial partial filing

fee within thirty days or show cause why she could not. Ms. Gallegos then

submitted a prisoner’s motion for leave to proceed on appeal under 28 U.S.C. §

1915, which was also denied.

      On appeal, Ms. Gallegos argues that the trial court’s finding that she was

“able to pay an initial filing fee of six dollars,” was an abuse of discretion. We

do not agree.

      Under the Prison Litigation Reform Act (“PLRA”), the amount indigent

prisoners are required to pay as an initial payment “depends on the average

deposits to and balance in the prisoner’s inmate account.” Cosby v. Meadors, 351

F.3d 1324, 1326 (10th Cir. 2003). Ms. Gallegos submitted an Inmate Trust Fund

Account statement showing a negative balance on May 6, but this was her first

negative balance in more than a year. Her account statement showed that about

five weeks prior her balance was $40.10. Moreover, within those five weeks she

spent $42.00 in “Canteen Orders.” The PLRA’s “fee provisions are intended to

reduce frivolous prisoner litigation by making all prisoners seeking to bring

lawsuits or appeals feel the deterrent effect created by liability for filing fees.”

Id. at 1327 (internal quotations and citations omitted). As we recognized in

Cosby, “when a prisoner has sufficient income to pay a monthly partial filing fee

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and instead spends his money on amenities at the prison canteen, [she] cannot be

excused for failing to make the required partial payments.” Id.

      The judgment of the United States District Court for the District of

Colorado is therefore AFFIRMED.

      Ms. Gallegos’ motion to proceed in forma pauperis is GRANTED.

However, we remind Ms. Gallegos that she must continue making partial

payments until the $455.00 appellate fee is paid in full.

                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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