                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 16, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 NORBERTO PEREZ AROCHO,

          Plaintiff-Appellant,

 v.                                                     No. 12-1328
                                               (D.C. No. 1:12-CV-01579-LTB)
 UNITED STATES OF AMERICA;                                (D. Colo.)
 HARLEY G. LAPPIN, Former Federal
 Bureau of Prison Director,

          Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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        This order and judgment is not binding precedent, except under the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.
      Plaintiff-Appellant Norberto Perez Arocho, a federal prisoner appearing pro

se, appeals dismissal of his complaint asserting a claim for damages pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), alleging violation of his constitutional rights. The district court

dismissed without prejudice Arocho’s claim for failure to comply with an order to

pay an initial filing fee of $1.00 or show cause why he could not make such

payment. We exercise jurisdiction under 28 U.S.C. § 1291. 1

                                         I.

      On June 18, 2012, Arocho brought suit against the United States and Harley

G. Lappin, the former Director of the Bureau of Prisons, alleging violations of his

Eighth Amendment rights by denial of adequate medical care. R. at 6.

Specifically, Arocho claims that on January 11, 2008, he was denied previously

ordered treatment for Hepatitis C and that the failure to timely implement this

treatment caused him permanent liver damage. Id. He claims the Director

wrongly refused to approve the medication and treatment, which shortened his life



      1
         Although a dismissal without prejudice may not always be a final,
appealable order, we conclude that it is here because the district court dismissed
Arocho’s action. See R. at 24; Moya v. Schollenbarger, 465 F.3d 444, 448-50
(10th Cir. 2006) (concluding that “the requirement of finality imposed by section
1291 is to be given a ‘practical rather than a technical construction.’” (internal
quotation marks omitted) (quoting Sherman v. Am. Fed’n of Musicians, 588 F.2d
1313, 1315 (10th Cir. 1978))).

                                          2
expectancy. 2 Id.

      On July 9, 2012, the magistrate judge granted Arocho leave to proceed in

forma pauperis (IFP), under 28 U.S.C. § 1915, and ordered Arocho to either pay

an initial partial filing fee of $1.00 pursuant to § 1915(b)(1) or show cause why

he was unable to do so within thirty days from the date of the order. Id. at 21.

The magistrate judge specifically ordered Arocho to submit a current certified

copy of his inmate trust account statement and warned that failure to comply

would result in dismissal of the action. Id. In response to this order, Arocho

submitted two certified copies of his prison trust account statement: the first,

submitted on July 19, was a trust account statement dated June 13; and the

second, submitted on July 23, was a trust statement dated June 29. Both indicated

that he had a balance of zero. Id. at 21-22. On August 14, the district court

concluded that the submitted statements did “not demonstrate that Mr. Arocho

currently lacks sufficient funds to pay the designated initial partial filing fee.” Id.

at 22. After finding that Arocho failed to pay the initial filing fee of $1.00 or

show cause why he could not currently make such payment, the district court

dismissed his action without prejudice pursuant to Rule 41 of the Federal Rules of



      2
         Arocho has previously filed an action alleging the same constitutional
violation by Director Lappin; this court affirmed the district court’s dismissal of
that action for lack of personal jurisdiction. See Arocho v. Lappin, 461 F. App’x
714, 719-20 (10th Cir. 2012) (remanding solely for district court to modify
judgment to dismissal without prejudice).

                                          3
Civil Procedure. Id. at 23.

                                          II.

      Pursuant to Rule 41(b), a district court may dismiss an action, sua sponte, if

“the plaintiff fails to prosecute or to comply with these rules or a court order.”

Fed. R. Civ. P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)

(finding that despite the Rule’s language, “the Rule has long been interpreted to

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

comply with the rules of civil procedure or court’s orders”). Generally, “‘Rule

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

criteria.’” 3 Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir. 2002)

(quoting Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994)). When the

dismissal is without prejudice, however, consideration of the Ehrenhaus factors is

not required. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., 552

F.3d 1233, 1236 (10th Cir. 2009); Nasious v. Two Unknown B.I.C.E. Agents,

Arapahoe Cnty. Justice, 492 F.3d 1158, 1162 (10th Cir. 2007) (“[A] district court

may, without abusing its discretion, enter [a Rule 41(b) dismissal without

prejudice] . . . without attention to any particular procedures.”).


      3
         The Ehrenhaus factors include: “(1) the degree of actual prejudice to the
defendant; (2) the amount of interference with the judicial process; (3) the
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.” Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th
Cir. 1992) (citations and quotation omitted).

                                           4
      We review for abuse of discretion a district court’s Rule 41(b) dismissal for

failure to comply with a court order. Cosby v. Meadors, 351 F.3d 1324, 1326

(10th Cir. 2003). “An abuse of discretion occurs when a district court makes ‘a

clear error of judgment or exceed[s] 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)

(alteration in original) (citation omitted) (quoting McEwen v. City of Norman,

Parks, 926 F.2d 1539, 1553-54 (10th Cir. 1991)). Because Arocho filed his

complaint pro se, we construe his pleadings liberally. See Bear v. Patton, 451

F.3d 639, 641 (10th Cir. 2006).

                                         III.

      Here, the district court concluded that Arocho’s submissions of June trust

account statements did not adequately respond to its order to either pay the $1.00

fee or show cause why he could not currently, as of July, pay the fee. The district

court dismissed Arocho’s action three weeks after he submitted two recent trust

account statements, albeit from the previous month, reflecting a zero balance.

There is no indication that Arocho had any warning that the submitted statements

were insufficient in the eyes of the district court. While the district court may

have concluded that these statements were insufficiently “current,” it made no

attempt to warn Arocho that he was noncompliant with the order during the three-

                                          5
week span between submission and dismissal. For all Arocho knew, he had

complied with the order.

      Unlike the cases warranting dismissal under this Rule, Arocho attempted to

comply with the order and was given only one chance by the district court to

discern the order’s meaning of “current.” See Olsen, 333 F.3d at 1205 (reversing

dismissal under this Rule when plaintiffs “demonstrated sincere efforts to comply

with the court’s orders”); cf. Cosby, 351 F.3d at 1331-32 (concluding that

dismissal was warranted when the “[p]laintiff was not attempting to comply with

the fee orders, and the district court gave Plaintiff ample opportunity to submit

evidence of compliance”). Arocho’s conduct neither interfered with the judicial

process nor reflected defiance of court orders. See Ehrenhaus, 965 F.2d at 921.

Arocho, as a pro se litigant, should not be penalized for failing to anticipate the

court’s undefined meaning of “current.” In light of the above, the district court’s

dismissal exceeded the bounds of permissible choice in the circumstances. See

Cosby, 351 F.3d at 1326 (citing the plaintiff’s insolence in response to the

“repeated directives of a patient district court”); Fed. R. Civ. P. 41(b) (warranting

dismissal only when plaintiff fails to comply with court order).

      Accordingly, we conclude that the district court abused its discretion by

dismissing without prejudice Arocho’s claim for failure to submit a “current”

statement, which the district court construed as failure to comply with a court




                                           6
order. 4 Therefore, we REVERSE the district court’s dismissal and remand for

proceedings consistent with this order. 5 Additionally, the district court denied

Arocho’s motion to proceed IFP on appeal for failing to assert a nonfrivolous,

reasoned argument. We disagree and GRANT Arocho’s motion to proceed IFP,

but remind him of his continuing obligation to make partial payments until the

filing fee is paid in full.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge




       4
           We express no view regarding the merits of plaintiff’s action.
       5
         Ordinarily, we can affirm “challenged decisions of the district court on
alternative grounds, so long as the record is sufficient to permit conclusions of
law.” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994). However, “we may
not affirm the imposition of a dismissal sanction based on an alternative legal
rationale not relied on by the district court ‘unless we can say as a matter of law
that it would have been an abuse of discretion for the trial court to rule
otherwise,’” which we do not find here. Conkle v. Potter, 352 F.3d 1333, 1337
(10th Cir. 2003) (quoting Ashby v. McKenna, 331 F.3d 1148, 1151 (10th Cir.
2003)).

                                           7
