                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         April 15, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
TERRY LEE CHILDS,

             Plaintiff-Appellant,

v.                                                         No. 12-6184
                                                   (D.C. No. 5:12-CV-00322-HE)
GEO GROUP, INC.; DAVID MILLER,                             (W.D. Okla.)
Warden; BILL GIBSON, Warden;
MELISSA HALVORSON, Medical
Admin; S. STOUFFER, Nurse/Pharmacy
Supervisor; CAPT JONES, Captain of
Security; MR. CROSS, Case Mgr.,

             Defendants-Appellees.


                             ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


      Terry Lee Childs is a prisoner of the State of Oklahoma appearing pro se. He

appeals from the dismissal of his civil rights complaint for failure to pay the filing

fee. We reverse and remand with directions.

*
      After examining the briefs and 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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                     I. Background

      Another of Mr. Childs’ civil rights suits is also pending on appeal

(No. 12-6075) and is relevant to our consideration of this appeal. We review the

history of both cases only to the extent necessary to decide the fee issue in this case.

      On April 29, 2010, Mr. Childs filed a civil rights complaint and a motion for

leave to proceed in forma pauperis (IFP) in Childs v. Miller, D.C. No. 5:10-CV-

00439-HE. The district court granted Mr. Childs’ motion to proceed IFP in the

district court, but ultimately dismissed the complaint without prejudice on

February 17, 2012. Mr. Childs’ notice of appeal and motion for reconsideration were

entered on the docket on March 20. On March 22, the district court denied the

motion for reconsideration. On April 27, Mr. Childs filed a motion for leave to

proceed IFP on appeal in the Miller case, No. 12-6075.

      Meanwhile, on March 23, 2012, Mr. Childs filed the complaint in the case

before us. He also filed a motion for leave to proceed IFP in the district court. On

April 2, the magistrate judge entered a Report and Recommendation (R&R)

recommending that Mr. Childs’ motion for IFP be denied because his trust account

statement showed that he had enough money to prepay the $350.00 filing fee.

R. at 28. The magistrate judge suggested giving Mr. Childs twenty-one days to pay

the filing fee or his complaint would be dismissed without prejudice. Id.

      On April 27, 2012, Mr. Childs filed a combined response in the Miller case to

orders from both of his cases. First, he sought leave to amend his notice of appeal in


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the Miller case to include the district court’s order denying his motion for

reconsideration. In addition, he asked for an extension of time in which to file an

amended complaint and pay the district court filing fee in this case, explaining that he

was in segregation and was unable to complete the paperwork to authorize the

payment or amend his complaint.

       On May 15, 2012, the district court granted the motion for IFP on appeal in

Miller, ordering Mr. Childs to make an initial partial appellate fee payment of

$102.29 by June 1. Also on May 15, the district court entered an order in this case,

noting Mr. Childs’ response to the magistrate judge’s R&R filed in the Miller case

and granting him until June 11 to amend his complaint and pay the district court

filing fee of $350.00. R. at 30-31, 33-34.

       On May 18, an entry was made on the docket sheet in the Miller case showing

that Mr. Childs had paid the entire filing fee of $455.00 for the appeal, No. 12-6075.

But Mr. Childs did not file an amended complaint in this case, and no payment

toward the filing fee is reflected on the docket for this case. On June 18, the district

court entered an order dismissing the complaint in this case without prejudice, stating

that Mr. Childs had failed to pay the filing fee by the June 11 deadline. Id. at 36.

Mr. Childs timely filed a notice of appeal, which stated that the “full filing fee was

remitted by . . . prison officials to the Court Clerk’s Office prior to June 1st 2012.”

Id. at 37.




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                                     II. Discussion

      Under Rule 41(b), a district court may dismiss an action, sua sponte, if “the

plaintiff fails to prosecute or to comply with these rules or a court order.”

Fed. R. Civ. P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)

(finding that despite the Rule’s language, “the Rule has long been interpreted to

permit courts to dismiss actions sua sponte for a plaintiff’s failure to prosecute or

comply with the rules of civil procedure or court’s orders”). Generally, “‘Rule 41(b)

involuntary dismissals should be determined by reference to the Ehrenhaus

criteria.’”1 Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002)

(quoting Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994)). When the

dismissal is without prejudice, however, consideration of the Ehrenhaus factors is not

required. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., 552 F.3d 1233,

1236 (10th Cir. 2009); Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,

1162 (10th Cir. 2007) (“[A] district court may, without abusing its discretion, enter [a

Rule 41(b) dismissal without prejudice] . . . without attention to any particular

procedures.”). We review for abuse of discretion a district court’s Rule 41(b)



1
       The Ehrenhaus factors include: “(1) the degree of actual prejudice to the
defendant; (2) the amount of interference with the judicial process; (3) the culpability
of the litigant; (4) whether the court warned the party in advance that dismissal of the
action would be a likely sanction for noncompliance; and (5) the efficacy of lesser
sanctions.” Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (citations and
quotation omitted).



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dismissal of a complaint for failure to comply with a court order. Cosby v. Meadors,

351 F.3d 1324, 1326 (10th Cir. 2003).

       Mr. Childs argues on appeal that prison staff mishandled the disbursement to

be made against the fees in his two cases. He asserts that he directed staff to pay the

district court filing fee in full for this case, and make only a partial appellate filing

fee payment in Miller, as he had been ordered to do. Instead, the appellate filing fee

in Miller was paid in full, and no payment was made toward the district court filing

fee in this case, which led to its dismissal.

       We conclude that the district court abused its discretion in dismissing the

complaint in this case. On May 15, 2012, the court entered an order in each of

Mr. Childs’ cases regarding IFP, ordering him to pay a total of $453.29 for both

cases. Mr. Childs timely paid $455.00, but the payment was applied only to the

Miller appeal instead of being divided between Mr. Childs’ two cases. This is not

what the district court ordered or intended.2

       The judgment of the district court is reversed, the complaint is reinstated, and

the case is remanded with directions to apply $350.00 of Mr. Childs’ $455.00

payment to the district court filing fee for this case. Mr. Childs’ motion for leave to



2
       The district court’s fee order in Miller may have been misread because it said
in the first paragraph that Mr. Childs “shall be required to pay the full $455.00 filing
fee as set forth hereafter.” Miller R. at 207. It was in the second paragraph of the
order that Mr. Childs was actually directed to pay only $102.29 as an initial partial
appellate filing fee.


                                            -5-
proceed in this appeal without prepayment of costs or fees is granted. He is reminded

that he must continue making partial payments until the $455.00 fee is paid in full.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge




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