                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      August 1, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                    TENTH CIRCUIT                      Clerk of Court



 A LV IN G A RY BR OWN ,

          Plaintiff - Appellant,
 v.
                                                        No. 06-4088
                                                 (D.C. No. 1:05-CV -138-DS)
 B RA N D ON B EC K, O .P.D .; FNU
                                                          (D. Utah)
 M cGU IRE, O.P.D.; W EBER
 CO UN TY A TTORNEY ’S OFFICE,

          Defendants - Appellees.



                              OR DER AND JUDGM ENT *


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.


      Plaintiff-Appellant Alvin Brown, appearing pro se, appeals the district

court’s decision dismissing his civil rights action without prejudice because

Brown failed either to pay an initial partial filing fee or to show why he could not




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
do so. 1 Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm that

dismissal.

I.    B ACKGR OU N D

      Brown, who is incarcerated in Utah, filed a complaint alleging civil rights

claims under 42 U.S.C. §§ 1983 and 1985 against two Ogden, Utah police officers

and the W eber County Attorney’s Office. The filing fee for pursuing such an

action is $250. See 28 U.S.C. § 1914(a). Brown applied to pursue this action in

forma pauperis (“IFP”) under 28 U.S.C. § 1915.

      Section 1915(a)(1) provides that “any court of the United States may

authorize the commencement . . . of any suit, action or proceeding, civil or

criminal, or appeal therein, without prepayment of fees . . . by a person who

submits an affidavit that includes a statement of all assets such prisoner possesses

that the person is unable to pay such fees . . . .”

      A prisoner seeking to bring a civil action or appeal a judgment in a civil
      action or proceeding without prepayment of fees . . . , in addition to
      filing the affidavit under paragraph (1), shall submit a certified copy of
      the trust fund account statement (or institutional equivalent) for the
      prisoner for the 6-month period immediately preceding the filing of the
      complaint or notice of appeal, obtained from the appropriate official of
      each prison at which the prisoner is or w as confined.

28 U.S.C. § 1915(a)(2). In applying to proceed IFP in this case, Brow n appears

to have submitted this required documentation.



      1
      W e grant Brown’s application to pursue this appeal in forma pauperis. See
28 U.S.C. § 1915(a).

                                           2
      Section 1915(b) further provides that

      (1) [n]otwithstanding subsection (a), if a prisoner brings a civil
      action or files an appeal in forma pauperis, the prisoner shall be
      required to pay the full amount of a filing fee. The court shall assess
      and, when funds exist, collect, as a partial payment of any court fees
      required by law, an initial filing fee of 20 percent of the greater of –

             (A ) the average monthly deposits to the prisoner’s
             account; or

             (B) the average monthly balance in the prisoner’s account
             for the 6-month period immediately preceding the filing of
             the complaint or notice of appeal.

      (2) After payment of the initial partial filing fee, the prisoner shall be
      required to m ake monthly payments of 20 percent of the preceding
      month’s income credited to the prisoner’s account. The agency having
      custody of the prisoner shall forward payments from the prisoner’s
      account to the clerk of the court each tim e the amount in the account
      exceeds $10 until the filing fees are paid.

             ....

      (4) In no event shall a prisoner be prohibited from bringing a civil
      action or appealing a civil or criminal judgment for the reason that the
      prisoner has no means by which to pay the initial partial filing fee.

      Pursuant to § 1915, the district court, on November 4, 2005, granted

B row n’s application to pursue his civil rights action IFP, but ordered that Brow n

pay an initial partial filing fee of fifty-three cents. The district court notified

Brown that, “[i]f this initial partial fee is not paid within thirty days, or if

Plaintiff has not shown he has no way to pay it, the complaint will be dismissed.”

In addition, the district court ordered that “Plaintiff shall make the necessary

arrangement to give a copy of this Order to the inmate funds accounting office or

                                            3
other appropriate office at Plaintiff’s correctional facility;” required Brown to

“complete the consent to collection of fees” form the court sent Brown; and then

directed Brown to submit that form “to his correctional institution’s inmate funds

accounting office and also submit a copy of the signed consent to this Court

within thirty days from the date of this Order or the complaint will be dismissed.”

      Brown did execute and return to the district court the “consent to collection

of fees” form just over two weeks later. But he never paid the initial

fifty-three-cent partial filing fee. Therefore, the district court, on January 13,

2006, almost two months after its initial fee order, ordered “that Plaintiff must

within thirty days show cause why his case should not be dismissed for failure to

pay his initial partial filing fee.” Brown never responded to that show cause

order. After waiting two more months, the district court on M arch 7, 2006,

dismissed Brown’s complaint without prejudice. Brown immediately responded

to the dismissal, asserting that he had not received the district court’s “letters”

and further indicating that he only had thirty-three cents in his account, so he

could not pay the fifty-three-cent partial filing fee. The district court treated

Brown’s response objecting to the dismissal as a motion for reconsideration, but

denied Brown relief after concluding he had failed to assert a reasonable

justification for failing to respond to the district court’s earlier orders. Brown

now appeals the district court’s decision dismissing his complaint without

prejudice.

                                           4
II.   ISSUES

      A.       W hether this court has jurisdiction to consider this appeal.

      W e must first satisfy ourselves that we have jurisdiction to consider this

appeal. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir.

2001). A district court’s decision dismissing an action without prejudice is not

always a final, appealable order. See id. at 1275. “The critical determination” is

whether the decision “effectively excluded” the plaintiff from federal court under

“the present circumstances” of the case. Id. (quotation omitted). In this case, w e

conclude the district court’s decision is a final, appealable order. See Florence v.

Decker, 153 F. App’x 478, 478 (10th Cir. Oct. 28, 2005) (unpublished) (holding

decision dismissing civil rights action without prejudice because plaintiff failed to

pay initial $8 filing fee was a “final order subject to appeal”); see also Taylor v.

Delatoore, 281 F.3d 844, 846-47 (9th Cir. 2002) (reviewing decision dismissing

action without prejudice because plaintiff failed to pay initial partial fee).

      B.       W hether the district court abused its discretion in dismissing
               Brow n’s action w ithout prejudice.

      This court reviews the district court’s decision to dismiss Brown’s action

without prejudice for an abuse of discretion. See Florence, 153 F. App’x at

479-80. The district court can, under Fed. R. Civ. P. 41(b), 2 dismiss an action



      2
          Rule 41(b) provides that

                                                                         (continued...)

                                           5
because the plaintiff fails to comply with a court order. See Florence, 153

F. App’x at 479-80 (reviewing district court’s order dismissing action without

prejudice because plaintiff failed to pay initial partial filing fee). In this case, w e

cannot say that the district court abused its discretion in dismissing Brown’s civil

rights action without prejudice.

      Before a district court can dismiss a prisoner’s action for failing to comply

with a fee order under the Prisoner Litigation Reform Act, the court must at least

give the prisoner an adequate opportunity to comply. See Redmond v. Gill, 352

F.3d 801, 803-04 (3d Cir. 2003). The district court did that in this case. The

district court twice provided Brown with notice that he risked dismissal of his

case if he did not either pay the initial partial filing fee or explain why he could

not do so. Further, the district court gave Brown thirty days from each of its

orders to respond, and did not actually dismiss this action for two months after its

show cause order. See Campanella v. Utah County Jail, 78 F. App’x 72, 73 (10th

Cir. Oct. 10, 2003) (unpublished) (holding district court did not abuse its

discretion in dismissing action without prejudice because plaintiff failed to pay



      2
       (...continued)
      [f]or failure of the plaintiff to prosecute or to comply with these rules
      or any order of court, a defendant may move for dismissal of an action
      or of any claim against the defendant. Unless the court in its order for
      dismissal otherwise specifies, a dismissal under this subdivision and
      any dismissal not provided for in this rule, other than a dismissal for
      lack of jurisdiction, for improper venue, or for failure to join a party
      under Rule 19, operates as an adjudication upon the merits.

                                            6
filing fee where plaintiff received adequate notice of IFP requirements and had

sufficient time to cure any deficiencies).

      Brown asserts that he never received this show cause order, 3 although he

does not claim that the district court erred in the manner in w hich the court

mailed this order–i.e., he does not assert the court sent it to the wrong address.

See Nixon v. Brooks, 242 F.3d 389 (Table) (10th Cir. Dec. 27, 2000)

(unpublished) (denying Fed. R. Civ. P. 60(b) relief from judgment dismissing

action without prejudice, even though plaintiff asserted he never received court’s

in forma pauperis order, where district court had mailed that order to the address

plaintiff had given court). Rather, Brown asserts that the district court’s order got

mixed up with another inmate’s mail at the prison, and that this other inmate

discarded the order. The district court did not deem this a “reasonable

justification” for Brown’s failure to respond to the district court’s orders in a




      3
        Brow n specifically alleges that he did not receive the district court’s
“letter.” It is not completely clear whether by “letter” he means the district
court’s initial order granting IFP or the later show cause order. It appears,
however, that Brown did receive the original fee order because he responded to it.
That order granted IFP and directed Brown to execute and return to the court a
form consenting to the withdrawal of funds from his prison account, as well as
ordering B row n to pay fifty-three cents as an initial partial filing fee. Brown
executed and returned the consent form to the district court within two weeks of
the court’s fee order. Further, in his objections to the district court’s decision
dismissing his case, Brown refers to his having previously obtained IFP status.
This indicates that he must have received the district court’s original fee order.
Therefore, we presume that Brown is asserting on appeal that he did not receive
the later show cause order.

                                             7
timely manner. W e cannot deem that an abuse of discretion.

      Even assuming Brown did not receive the show cause order, 4 he still

received the district court’s original fee order, which specifically required Brow n

to pay the fifty-three-cent initial partial filing fee or explain why he could not do

so within thirty days of that order. Further, that order gave him adequate notice

that he risked the dismissal of his case if he did not timely comply with that

order. Brow n has failed to establish that could not have responded to that order.

For these reasons, we cannot conclude that the district court abused its discretion

in dismissing Brown’s action without prejudice.

      W e further note that “dismissal without prejudice is not an extreme

sanction because the remedy is simply to cure the defect and refile the

complaint.” Florence, 153 F. App’x at 480. Thus, Brown can initiate a new

action by refiling his complaint and either paying the full filing fee at the start of

the litigation or successfully applying to proceed IFP and then complying with the

district court’s fee orders. See Lemons v. K.C. M o. Police, 158 F. App’x 159,

160 (10th Cir. Dec. 13, 2005) (unpublished); House v. Utah, 129 F. App’x 432,




      4
       Brown did not submit any evidence to the district court in support of his
claim that he did not receive the district court’s show cause order, other than his
conclusory assertion in two unsworn letters that he did not receive that order. Cf.
Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004) (holding pro se asylum
applicant had failed to show he did not receive notice of hearing, where he
asserted only his conclusory statement that he did not receive it, and he did not
put that assertion in “proper affidavit form for receipt as evidence”).

                                           8
434 (10th Cir. Apr. 21, 2005) (unpublished).

III.   C ON CLU SIO N

       For these reasons, we AFFIRM the district court’s decision dismissing

Brown’s civil rights action without prejudice. Further, we remind Brown of his

continuing obligation to make partial payments until the full amount of his

appellate filing fee is paid.



                                      ENTERED FOR THE COURT



                                      David M . Ebel
                                      Circuit Judge




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