                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                         July 1, 2008
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 RAYMOND A. BUTLER, JR.,

               Plaintiff - Appellant,                    No. 07-1528
          v.                                             (D. Colorado)
 H. A. RIOS, JR., Warden; PRICE,              (D.C. No. 07-CV-1249-REB-CBS)
 Correctional Officer,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      After examining the appellate briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      In 2007, appellant Raymond A. Butler, Jr., a federal prisoner, filed a

complaint asserting violations of his federal civil rights. See Bivens v. Six



      *
        This order and judgment is not binding precedent except under the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.
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The

district court granted Butler’s motion to proceed in forma pauperis and ordered

him to pay an initial partial filing fee of $11.00 or show cause why he had no

means by which to pay the fee. See 28 U.S.C. § 1915(b)(1). Butler was also

ordered to make monthly payments of twenty percent of the preceding month’s

income credited to his prison trust fund account or show cause each month why

he was unable to do so. He was specifically directed that to show cause he must

file a current certified copy of his prison trust fund account statement. He was

warned that his complaint would be dismissed if he did not pay the initial partial

filing fee or make the monthly payments.

      Butler paid the partial filing fee but failed to either make the monthly

payments for August and September 2007, or show cause for that failure by

providing his current trust fund account statement. On September 26, 2007, the

district court entered a second order directing Butler to make the monthly

payments no later than the fifteenth day of each month or file a certified copy of

his inmate trust fund account statement or show cause for the failure. Again, the

district court warned Butler that his complaint would be dismissed if he failed to

comply:

      If Plaintiff fails hereafter to comply with this requirement in any
      month prior to the date on which the filing fee is paid in full, the
      Court will recommend that the case be dismissed for failure to
      comply with this Order and with the Order allowing Plaintiff to
      proceed in forma pauperis entered June 14, 2007.

                                         -2-
Despite the warning, Butler failed to make the required payments and did not file

copies of his trust fund account statement. Accordingly, the magistrate judge

issued a recommendation that Butler’s complaint be dismissed. The

recommendation contained a comprehensive analysis of the factors enumerated by

this court in Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Butler

filed objections to the recommendation, arguing he had made arrangements with

an “outside party” to pay the filing fee in full but the payment had not been made.

Butler requested an opportunity to bring his payments current and informed the

court that a $45.00 payment would be sent on November 10, 2007.

      The district court considered Butler’s objections but adopted the magistrate

judge’s recommendation and dismissed the complaint with prejudice. The court

noted that Butler’s explanation did not excuse his failure to respond to the court’s

September 26th order. It further noted that the promised back payment of $45.00

had never been received by the court. Butler then brought this appeal.

      The sole argument raised in Butler’s appellate brief was never presented to

the district court. He asserts he requested copies of his inmate trust fund account

statement but the prison failed to provide them. He also asserts the prison failed

to comply with his request to have payments made to the district court. Despite

Butler’s further assertion that documentation evincing these requests is attached

to his brief, no such attachments have been filed with this court. We decline to

consider this argument, both because it was not presented to the district court and

                                         -3-
because it lacks support in the record. See Wolfe v. Barnhart, 446 F.3d 1096,

1103 (10th Cir. 2006).

      Having reviewed the record, the appellate briefs, and the applicable law, we

can discern no reversible error by the district court. Accordingly, the dismissal of

Butler’s complaint is affirmed for substantially the reasons stated in the

recommendation dated October 30, 2007 and the order dated November 27, 2007.

Butler’s motion to proceed in forma pauperis on appeal is granted. In light of

his statutory obligation to continue making partial payments until his appellate

filing fees are paid in full, 28 U.S.C. § 1915(b), Butler’s Motion Requesting

Continuation of Monthly Payments is denied as moot.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




                                         -4-
