                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         August 19, 2010
                                   TENTH CIRCUIT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
SYLVIA OCAMPO-WIECHMANN, a/k/a
Sylvia Wiechmann, a/k/a Sylvia O.
Wiechmann,                                                    No. 10-1105

       Plaintiff - Appellant,                                  (D. Colo.)
                                                    (D.C. No. 1:09-CV-02906-ZLW)
v.

NANCY L. ANDERSON, and all alias
[sic],

       Defendant - Appellee.



                                ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Appellant has waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.

34.1(G). This case is submitted for decision on the briefs.

       Sylvia Ocampo-Wiechmann, a prisoner in the Denver County jail proceeding pro




       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
se,1 appeals from the district court’s order dismissing her civil complaint for failure to

cure deficiencies in her request to proceed in forma pauperis (ifp). We affirm.

                                 I.       BACKGROUND

       Ocampo-Wiechmann, filed a civil claim against Nancy L. Anderson, her former

employer and landlord, and a request to proceed ifp.2 On December 11, 2009, the

magistrate judge issued an order directing her to cure various deficiencies within thirty

days. Specifically, the order directed Ocampo-Wiechmann to file her complaint and

request to proceed ifp on the proper forms and to comply with the statutory requirements

governing requests to proceed ifp. See 28 U.S.C. § 1915. On December 22, 2009, she

filed a complaint and her request to proceed ifp on the proper forms. However, she did

not submit a certified statement of the amount in her prisoner’s trust account for the six

months preceding her filing.3 See 28 U.S.C. § 1915(a)(2).


       1
        We liberally construe pro se filings. See Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003). During the course of these proceedings, Ocampo-
Wiechmann has been transferred back and forth from the Denver County jail to the
Colorado State Hospital for competency evaluations. Her latest notification of her
address indicates she is currently at the State Hospital.
       2
         We have read the original and amended complaints and are uncertain the actual
basis under which Ocampo-Wiechmann claims federal jurisdiction. She did not respond
to the jurisdictional question on the complaint form and checked “no” in response to the
question asking if the defendant was acting under color of state law, but her complaint
does mention she was renting under “Sec[tion] 8,” a federal housing program. (R. Vol. I
at 15, 18.) Solicitous interpretation of her pro se complaint, therefore, provides some
basis for jurisdiction. We leave it for the district court to further explore the basis for its
jurisdiction should Ocampo-Wiechmann choose to re-file her complaint.
       3
           Subsection (a)(2) of 28 U.S.C. § 1915 states:

       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

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       On January 21, 2010, the district court dismissed her complaint without prejudice

for failing to cure the deficiency in her request to proceed ifp. Ocampo-Wiechmann filed

a “Motion for Rebuttal Of Dismissal” explaining she had difficulty obtaining the trust

fund statement through the normal jail communications and received it only when she

personally made her request. (R. Vol. I at 32.) Construing her “rebuttal” as a motion to

reconsider pursuant to Fed. R. Civ. P. 59(e), the district court denied reconsideration.

       Following her notice of appeal,4 the district court ordered her to submit a motion

to proceed ifp on appeal or pay the filing fee within thirty days. Instead, she filed a

motion to proceed ifp on appeal with this Court and later submitted what appears to be a

copy of her trust fund account. However, the certification page contains her handwritten

notations including “Refuse to Sign!” in the signature line reserved for the authority

certifying the submission. (Application at 12.)

       The same day, we entered an order assessing the $455.00 filing fee and directing

the proper custodian to begin deducting partial payments from Ocampo-Wiechmann’s

trust account. Wiechmann filed a motion to reconsider this assessment because her

monthly deposits are donations; she filed a prisoner complaint “which the fee is normally



       the [necessary affidavit], 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 was confined.
       4
        Ocampo-Wiechmann filed a “Motion for Rebuttal of Dismissal & Amend in the
10th Circuit Court of Appeals” and a “Motion to Transfer Civil Action” with this Court.
(R. Vol. I at 39, 44.) We construe these pleadings, together, as her notice of appeal.


                                            -3-
$5.00 to $10.00” for a prisoner; and she has lost all her assets to Anderson. (Motion to

Reconsider at 1-2.)

                   II.       DISMISSAL WITHOUT PREJUDICE

       “Rule 41(b) [of the Federal Rules of Procedure] specifically authorizes a district

court to dismiss an action for failing to comply with any aspect of the Federal Rules of

Civil Procedure.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th

Cir. 2007). “Although the language of Rule 41(b) requires that the defendant file a

motion to dismiss, the Rule has long been interpreted to permit courts . . . to dismiss

actions sua sponte for a plaintiff’s failure to comply with the rules of civil procedure or

court’s orders.” Id. at 1161 n.2 (quotations omitted). “We review dismissals under Rule

41(b) for abuse of discretion.” Id. at 1161. “Employing Rule 41(b) to dismiss a case

without prejudice . . . of course allows the plaintiff another go . . .; a district court may,

without abusing its discretion, enter such an order without attention to any particular

procedures. Id. at 1162.

       After a review of the entire record, we cannot say the district court abused its

discretion. While Ocampo-Wiechmann was transferred to a different facility after filing

her complaint, the transfer did not occur until after the court-ordered thirty-day period

had expired. She did not provide the district court copies of her requests for a certified

trust account statement which were allegedly denied. The court could reasonably

conclude her excuses were not credible. In addition, the dismissal is without prejudice so

she can re-file her complaint with a properly supported motion to proceed ifp.




                                              -4-
               III.       MOTIONS PENDING WITH THIS COURT

        Ocampo-Wiechmann has two motions pending with this Court – her motion to

proceed ifp on appeal and her motion to reconsider the fee assessment. To proceed ifp on

appeal “an appellant must show a financial inability to pay the required filing fees and

the existence of a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)

(emphasis added). Ocampo-Wiechmann has not submitted a certified copy of her trust

account and offers no explanation why the proper authority refused to sign it. In any

event, her appeal is frivolous as she had only to complete the same forms she must

complete on appeal to re-file her claim. Therefore, we deny her motion to proceed ifp.

        Even if we allowed her to proceed ifp on appeal, we would deny her motion to

reconsider the assessment of fees. Subsection (b) of 28 U.S.C. § 1915 states in pertinent

part:

        (b)(1) Notwithstanding [authorization to proceed ifp], if a prisoner . . . 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
        partial filing fee . . . .

        (2) After payment of the initial partial filing fee, the prisoner shall be
        required to make monthly payments of 20% 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 time the amount in the account exceeds $10 until the filing
        fees are paid.

The fee to file an appeal in the Tenth Circuit is $455.00.

        The dismissal without prejudice is AFFIRMED; the motion to proceed ifp on



                                              -5-
appeal is DENIED; the motion to reconsider assessment of fees is DENIED.

                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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