                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                        April 7, 2008
                                                    Elisabeth A. Shumaker
                                                        Clerk of Court
                  UNITED STATES COURT OF APPEALS

                             TENTH CIRCUIT


VINCENT GEORGE KOURIS,

      Plaintiff-Appellant,
v.

JUDGE RICHARD THOMAS
GURLEY, 21st Judicial District, Mesa
County; JUDGE AMANDA BAILEY,
21st Judicial District, Mesa County;
DA PETE HATZINGER, District
Attorney's Office, 21st Judicial
District; DA MARK HAND &
COMPLETE STAFF, District
Attorney's Office, 21st Judicial
District; MR. WILSON, Office of the
Colorado State Public Defender;
FRANCIS BROWN, Office of the
                                                No. 07-1293
Colorado State Public Defender;
                                        (D.C. No. 07-cv-00772-ZLW)
STEVE COLVIN AND COMPLETE
                                                 (D. Colo.)
STAFF, Office of the Colorado State
Public Defender; GOVERNOR BILL
RITTER, For Colorado Department of
Corrections; SGT. NORA KURTZ,
Arkansas Valley Correctional Facility
Mail Room; MAJOR JARAMILLO &
COMPLETE STAFF, Arkansas Valley
Correctional Facility Mail Room;
ASS. WARDEN TREVOR
WILLIAMS, Arkansas Valley
Correctional Facility; JOHN
SUTHERS, Colorado Attorney
General; ALBERTO GONZALES,
U.S. Attorney General; UNITED
STATES DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.;
 ALLEN STANLEY AND COMPLETE
 STAFF, Colorado State Board of
 Parole; JEANEEN MILLER, Colorado
 Department of Corrections, Division
 of Adult Parole and Community
 Corrections; JOHN DOE & JANE
 DOE 1-100; OFFICER MORENO,
 Grand Junction Police Dept.

          Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Vincent George Kouris, appearing pro se, 1 appeals the district court’s

dismissal of his 42 U.S.C. § 1983 claim for failure to pay the assessed partial

filing fee. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the following

reasons, we AFFIRM the district court’s order of dismissal.




      *
             This Order and Judgment is not binding precedent, except under the
doctrines of the 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. After examining the briefs and the appellate record, this three-
judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
      1
              Because Mr. Kouris is proceeding pro se, we review his pleadings
and filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                        -2-
                                  I. BACKGROUND

         Mr. Kouris, who is incarcerated in Colorado, filed a complaint alleging

civil rights violations pursuant to 42 U.S.C. § 1983 against various judicial,

prison, and other state and local government officials. He sought leave to proceed

in forma pauperis (“IFP”) before the district court under 28 U.S.C. § 1915. On

May 18, 2007, the district court granted his § 1915 motion and ordered Mr.

Kouris to pay the full amount of the $350 filing fee in installments and to pay the

initial filing fee of $1 within 30 days or to show cause why he could not pay the

fee. The district court warned Mr. Kouris that failure to pay the initial partial

filing fee would result in dismissal of his claim. Mr. Kouris failed to pay the $1

initial partial filing fee, and on June 29, 2007, the district court dismissed his

claim without prejudice.

         On July 10, 2007, Mr. Kouris filed a notice of appeal of the district court’s

dismissal of his claim. In addition to stating his intent to appeal, Mr. Kouris

claimed that he had filed paperwork indicating he had no assets and that the

Department of Corrections had impeded both his letter to the court on that matter

and his money order. The district court, liberally construing his filing, considered

it to be a motion to reconsider because of those additional statements provided by

Mr. Kouris. Because his notice of appeal came within ten days of the district

court’s dismissal order, the district court considered his motion under Fed. R. Civ.

P. 59.

                                           -3-
      The district court found that Mr. Kouris had filed a document on June 25,

2007, in which he claimed that he had tried to send a money order to the Court

but it was held by prison officials from May 20, 2007, until June 18, 2007.

However, the district court noted that this filing was not signed by Mr. Kouris

until June 20, 2007, and it included an account statement indicating he had

sufficient funds to pay the $1 fee at that time. Furthermore, the district court

stated that Mr. Kouris did not assert that the money order was held beyond June

18, 2007, and the court had never received his payment—either prior to the June

29, 2007, dismissal or at any time prior to its decision on his motion for

reconsideration. Accordingly, the district court concluded that Mr. Kouris failed

to submit his $1 partial filing fee or provide a certified copy of his account

statement indicating that he had insufficient funds.

      After considering his explanation regarding his failure to pay the partial fee

and identifying the grounds that would justify reconsideration, the district court

concluded that Mr. Kouris failed to “demonstrate some reason why the Court

should reconsider and vacate the order to dismiss the action” and, consequently,

denied the motion to reconsider. R., Vol. I, Doc. 12, at 3 (Dist. Ct. Order, dated

July 27, 2007). In so doing, the district court explained that it was dismissing

both Mr. Kouris’s complaint and his action and that Mr. Kouris could only pursue

his claims by filing a new lawsuit. Mr. Kouris now appeals.




                                          -4-
                                  II. DISCUSSION

      The standard of review of a district court’s dismissal of a claim for failure

to comply with a court order to pay a filing fee is abuse of discretion. Cosby v.

Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003). There exists an abuse of

discretion when “the trial court makes an arbitrary, capricious, whimsical, or

manifestly unreasonable judgment.” Nalder v. W. Park Hosp., 254 F.3d 1168,

1174 (10th Cir. 2001) (quoting FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir.

1994)).

      We find the district court did not abuse its discretion in this case. On May

18, 2007, the district court established a reasonable initial partial filing fee of $1

and provided notice to Mr. Kouris that the filing fee was due within 30 days of

the order or the claim would be dismissed. Mr. Kouris failed to comply with the

court order, and on June 29, 2007, more than 30 days after the initial order, the

district court dismissed his claims. Furthermore, when the district court

construed Mr. Kouris’s notice of appeal as a motion to reconsider, it considered

his explanation for his failure to comply: that prison officials held his money

order until June 18, 2007. Its conclusion that he did not provide adequate

justification for failing to comply with the initial order, particularly in light of

never having received the money order after June 18, did not exceed the bounds

of permissible choice under the circumstances. Consequently, the district court

acted within its discretion in dismissing Mr. Kouris’s claim.

                                          -5-
                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s dismissal of

Mr. Kouris’s claim for failure to pay the initial filing fee.

      We also GRANT Mr. Kouris’s request for leave to proceed without

prepayment of the appellate filing fee. Although Mr. Kouris has made partial

payments toward his filing fee, we remind him of his continuing obligation to

make such payments until the entire fee has been paid in full. See 28 U.S.C. §

1915(b)(1)-(2).

                                        ENTERED FOR THE COURT



                                        Jerome A. Holmes
                                        Circuit Judge




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