                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 October 1, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                    TENTH CIRCUIT


 BARBARA FREEMAN,

          Plaintiff - Appellant,
 v.

 COLORADO DEPARTMENT OF
 CORRECTIONS (C.D.O.C.)/DENVER
 WOMEN’S CORRECTIONAL
 FACILITY (D.W.C.F.); ARISTEDES
                                                        No. 10-1214
 W. ZAVARAS, Executive Director;
                                              (D.C. No. 1:09-CV-03021-ZLW)
 TRAVIS TRANI, Warden, D.W.C.F.;
                                                         (D. Colo.)
 ARTHUR CHAVEZ, Major, Internal
 Cust.; ROMONA AVANT, Capt.,
 Internal Cust.; GAYLE ROSS, Lt.,
 Units 1, 2, 3; JAMES HOWARD,
 Srgt., Unit 2; STANLEY JERIDO,
 C/O, Unit 2; MEDICAL STAFF,
 D.W.C.F.,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.




      *
         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order and judgment is not binding precedent except under the doctrines of law of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. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Barbara Freeman, an inmate at the Denver Women’s Correctional Facility

(“DWCF”), filed a complaint in the district court alleging various constitutional

violations based on the conditions and her treatment at DWCF. Ms. Freeman did

not, however, pay the initial partial filing fee calculated by the district court

pursuant to 28 U.S.C. § 1915. Neither did she show cause why she could not pay

the fee. Accordingly, the district court dismissed her complaint without

prejudice. Finding no abuse of discretion in the district court’s order, we affirm.

                                         ***

      Ms. Freeman filed both her complaint and a motion to proceed under 28

U.S.C. § 1915 on February 16, 2010. The magistrate judge granted the motion

and correctly ordered Ms. Freeman to make an initial payment of $74.00 towards

the filing fee (an amount equal to 20% of her average prison account balance over

the previous six months), see 28 U.S.C. § 1915(b)(1)(B), or to show cause why

she “has no assets and no means by which to pay the initial partial filing fee,” see

28 U.S.C. § 1915(b)(4). After an extension of the time allowed to respond, Ms.

Freeman eventually filed another prison account statement and a letter which the

district court construed as a request to waive the filing fee entirely. The district

court denied this request and dismissed Ms. Freeman’s case without prejudice.

      We review for abuse of discretion a district court’s dismissal of an action

due to the plaintiff’s failure to pay the required filing fee. Cosby v. Meadors, 351

F.3d 1324, 1326 (10th Cir. 2003). Even giving Ms. Freeman’s appellate briefing

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the solicitous consideration to which it is entitled, see Van Deelen v. Johnson,

497 F.3d 1151, 1153 n. 1 (10th Cir. 2007), we strain to discern any arguments

regarding her ability to pay the filing fee. Ms. Freeman refers to a money order

that “should have been turned in or returned to the plaintiff” and, in a letter filed

after her opening brief, 1 refers to her difficulty balancing living expenses and

legal costs. But in none of this do we find an allegation of error that would

constitute abuse of discretion.

      To the contrary, as the district court correctly stated, “requiring prisoners to

make economic decisions about filing lawsuits . . . merely places the indigent

prisoner in a position similar to that faced by those whose basic costs of living are

not paid by the state.” Shabazz v. Parsons, 127 F.3d 1246, 1249 (10th Cir. 1997)

(internal quotations and alterations omitted). Thus, we affirm the district court’s

order for substantially the same reasons given in its thoughtful opinion. We also




      1
          Ms. Freeman’s letter could be interpreted as a request that we dismiss her
appeal while she focuses on obtaining collateral relief in state court (“I will have
to dismiss this case entirely or put on hold then fight it when the other case is
finished.”). Nonetheless, we consider the merits of Ms. Freeman’s appeal
because her letter is ambiguous as to what it seeks, and because neither our order
nor the district court’s dismissal without prejudice will interfere with her ability
to re-file this action with an appropriate payment towards the filing fee.

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deny Ms. Freeman’s motions to proceed on appeal in forma pauperis and without

prepayment of the filing fee.


                                    ENTERED FOR THE COURT



                                    Neil M. Gorsuch
                                    Circuit Judge




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