                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 14, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 R ALPH M ER CA D O ,

               Plaintiff-Appellant,                     No. 07-1112
          v.                                        District of Colorado
 R. W ILEY; R. W OO D; M . BA RBEE;            (D.C. No. 06-CV-02303-ZLW )
 R. BAUER; CHUCK TURNER;
 M ARK M ASER; John Doe #1; J.
 W A D A S; H . TR APP; R . C UR RIN;
 RA LPH SM ITH ; HARR ELL W ATTS;
 JOHN OR JANE DOE # 2,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


      Ralph M ercado, a prisoner at the United States Penitentiary in Florence,

Colorado, appeals pro se the district court’s decision to dismiss his claim without

prejudice for failing to meet the fee requirements of 28 U.S.C. § 1915.



      *
        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); 10 th 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 10 th Cir. R. 32.1.
      M r. M ercado alleges that he was the victim of various civil rights violations

at ADX Florence, in violation of Bivens v. Six U nknown Fed. Narcotics Agents,

403 U.S. 388 (1971). He claims that the prison subjected him to harmful

chemical vapors and failed to respond to his resulting medical complications, in

violation of his constitutional rights.

      M r. M ercado first filed a claim in this case on November 15, 2005, which

was dismissed without prejudice for failure to exhaust administrative remedies.

M ercado v. Wiley, 200 F. App’x 765 (10th Cir. 2006). He re-filed the complaint

one year later. At the same time, M r. M ercado filed, and the district court

granted, a motion to proceed without prepayment of costs, pursuant to 28 U.S.C.

§ 1915.

      On November 16, 2006, the district court found M r. M ercado capable of

paying an initial $80 partial filing fee and ordered either payment or proof that

the plaintiff had no assets and was unable to pay. M r. M ercado filed a motion

arguing that his proper payment amount should be only $13.28. On February 16,

2007, the district court dismissed the case without prejudice and dismissed a

motion to appoint counsel as moot. M r. M ercado now appeals the district court’s

decision.

      Under 28 U.S.C. § 1915(b)(1), the initial partial filing fee for a prisoner

proceeding in forma pauperis is 20% of the greater of the average monthly deposit

to his account or the average monthly balance in his account for the six-month

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period preceding the filing of the complaint. In his initial IFP motion, M r.

M ercado submitted a certified statement of his prison trust account, the accuracy

of w hich w as accepted by the district court. According to that statement, M r.

M ercado’s average monthly deposit was $66.67, and his average daily balance

was $26.60. 1 M r. M ercado should have been assessed a fee of $13.33, which is

twenty percent of the greater of those two numbers. The district instead imposed

a filing fee of $80, presumably by calculating the amount based on the six-month

deposit total of $400 instead of the monthly deposit total of $66.67.

      In his petition and briefs to this Court, M r. M ercado also argues that he was

assessed an initial filing fee for his November 2005 complaint and should not

have to pay it again, relying on Owens v. Keeling, 461 F.3d 763, 773 (6th Cir.

2006):

      A prisoner who “refile[s]” a complaint alleging the same claims regarding
      prison conditions after it was initially dismissed without prejudice for
      failure to exhaust is not “instituting” a suit, but is merely following the
      particular procedure chosen by this court for curing the initial complaint's
      deficiency. Therefore, we hold that when a prisoner “refiles” a complaint
      raising the same prison-conditions claims as a complaint that was initially
      dismissed without prejudice for failure to exhaust under the PLRA, the
      prisoner need not pay an additional filing fee under 28 U.S.C. § 1914(a).

Id. at 773 (internal citations omitted). Because M r. M ercado did not make this

argument in district court, and because we must remand in consideration of the

improperly calculated filing fees, we decline to examine the merits of this issue

      1
       It is not clear from the record what M r. M ercado’s average monthly
balance would be.

                                         -3-
for the first time on appeal. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720

(10th Cir. 1993).

      Under the same logic, the Appellant also moves to waive his appellate

filing fees, noting that he was assessed fees when appealing the earlier dismissal

in the same case. Adhering to our established practice, we deny this motion.

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

Colorado is REVERSED and REM AND ED for further proceedings.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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