                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         October 7, 2005

                                 TENTH CIRCUIT
                                                                         Clerk of Court



 JAY ALLEN FREY,

          Plaintiff-Appellant,
                                                        No. 05-1061
 v.                                                 (D.C. No. 04-Z-2439)
                                                         (Colorado)
 D.D.A. TIM McCORMACK,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Jay Allen Frey, a state prisoner appearing pro se, appeals from the district

court’s dismissal of his civil rights complaint pursuant to 42 U.S.C. § 1983. The

district court dismissed his suit without prejudice because he failed to submit a

certified copy of his trust fund account as ordered by the court. Construing Mr.

      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Frey’s pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we

deny his motion to proceed in forma pauperis (ifp) on appeal and therefore

dismiss the appeal.

      Mr. Frey filed an application with the district court to proceed ifp pursuant

to 28 U.S.C. § 1915. He included a trust fund account statement that was

notarized but not certified by a prison official. On November 24, 2004, the

magistrate judge informed Mr. Frey that the ifp application was deficient because

the trust fund account statement he submitted was not certified by a prison

official. The judge ordered Mr. Frey to cure the deficiency within thirty days or

suffer dismissal of his claims without prejudice. On December 7, 2004, Mr. Frey

submitted another account statement that was notarized but not certified. The

district court dismissed the action without prejudice for failure to cure.

      The Federal Rules of Civil Procedure permit a district court to dismiss an

action for failure to comply with a court order. See Fed. R. Civ. P. 41(b). We

review the district court’s dismissal of Mr. Frey’s suit for abuse of discretion.

See Mobley v. McCormick, 40 F.3d 337, 340 & n.1 (10th Cir. 1994). Subsection

(a)(2) of 28 U.S.C. § 1915 instructs that

      A prisoner seeking to bring a civil action . . . without
      prepayment of fees . . . 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 . . . , obtained from the appropriate
      official of each prison at which the prisoner is or was confined.

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The § 1915 form used by Mr. Frey prominently lists this requirement in almost

identical language. Moreover, the magistrate judge explicitly informed Mr. Frey

that the account statement he had submitted “was not certified by a prison

official” and that he must cure this deficiency within thirty days or risk dismissal.

While Mr. Frey did respond in a timely fashion, he failed to address the

magistrate judge’s order by submitting the appropriately certified document.

Because Mr. Frey received adequate notice of the § 1915 requirement, sufficient

time to cure the deficiency, and proper warning of the penalty of dismissal for

failure to abide by the court’s order, the district court did not abuse its discretion

in dismissing the action without prejudice.

      On appeal, Mr. Frey states that “[t]he court dismissed on my case because I

didn’t get the remidy of my financial records in time, and I had no control over

this,” Aplt. Br. at 16, and “I have no control of getting the proper paper work,

even when I’ve ask for it.” Id. at 3. He also states that “I have been moved with

out any notice, there-fore my paper work would never follow me. My mail never

was forwarded, nor were any kites I had written to fix any problems I court’s

asked me to fix.” Id. at 17. Even if Mr. Frey was moved without notice and

experienced difficulties in receiving his mail, these difficulties do not explain

why he neglected to tell the magistrate judge when he filed his response why he

could not follow the court’s order. Moreover, the record contradicts Mr. Frey’s


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explanations because prison officials did provide him an account statement

promptly after he requested it, see rec., doc. 4 at 3-4, and there is no indication

that he asked for the document to be certified. Having determined that the

dismissal of his suit is appropriate, we do not consider the merits of Mr. Frey’s

claims that his civil rights were violated.

       Mr. Frey has also submitted an application to proceed ifp on appeal. He

has included a properly certified copy of his account statement, which indicates a

positive balance of $42.55. While Mr. Frey has demonstrated that he cannot pay

the filing fee, he has not otherwise met the requirement that he raise a

nonfrivolous issue. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.

1991). We therefore deny his application to proceed on appeal without payment

of the fee.

       For the reasons stated above, we DENY Mr. Frey’s application to proceed

ifp, and DISMISS the appeal.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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