                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       October 28, 2005
                                 TENTH CIRCUIT
                                                                         Clerk of Court

 GEORGE EDWIN FLORENCE,

               Plaintiff - Appellant,                   No. 05-1290
          v.                                            D. Colorado
 LYNN M. DECKER; DAWN M.                         (D.C. No. 05-cv-383-ZLW)
 PETERSON; JORGE L.
 SALLABERRY; RICHARD C.
 GAMUAC; JUDY PAULICH;
 ANGELA R. YORK; JOANNE
 SMILEY, JANE DOE: JOHN DOE;
 PARKVIEW MEDICAL CENTER,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judges.




      *
       After examining the brief 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
      George Edwin Florence filed a civil rights complaint under 28 U.S.C.

§ 1983 against the Parkview Medical Center and various medical-center personnel

after he allegedly slipped and fell on a slick floor while incarcerated at the

Federal Correctional Institution in Florence, Colorado. His complaint asserts 14

claims.

      On March 1, 2005, the magistrate judge granted Mr. Florence’s request to

proceed in forma pauperis under 28 U.S.C. § 1915 and ordered Mr. Florence to

pay an initial $8.00 filing fee within 30 days or show cause why he could not pay

it. The order warned that failure to comply would result in dismissal without

further notice. On April 1, 2005, Mr. Florence submitted to the court a copy of

his request to the Bureau of Prisons to have funds withdrawn for the initial fee.

On April 6, 2005, the magistrate judge granted Mr. Florence an additional 30 days

to pay the initial fee or to show cause why he was unable to do so. No response

was received, and on May 17, 2005, the complaint was dismissed without

prejudice.

      On June 3, 2005, Mr. Florence filed a motion to reconsider indicating that

he could not pay the filing fee because his prisoner account was already

encumbered with debt owed to the prison. The motion also asserted that a

lockdown was instituted at the prison on April 30, 2005, although he does not

claim that it prevented him from communicating with the court. Because the


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motion to reconsider was filed more than 10 days after the case was dismissed,

the court construed it as a Rule 60(b) motion, found that Mr. Florence had not

identified any extraordinary circumstances justifying relief under Rule 60(b), and

denied the motion. The defendant filed a notice of appeal and requested leave to

proceed in forma pauperis. The district court denied the request because

“plaintiff has not shown the existence of a reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal.” R. Doc. 28.

      We review for abuse of discretion the district court’s dismissal without

prejudice for failure to comply with a court order. See Cosby v. Meadors, 351

F.3d 1324, 1326 (10th Cir. 2003). Although Mr. Florence raises several

arguments concerning the constitutionality of certain prison policies regarding his

prison financial account, the only issue properly before us is whether the district

court abused its discretion in dismissing his complaint without prejudice for

failing to pay, or to show cause why he could not pay, the initial $8.00 filing fee

as ordered by the court. We note that although the dismissal was without

prejudice, it is clear that the district court was dismissing the entire action and not

just the complaint. It was therefore a final order subject to appeal. Mobley v.

McCormick, 40 F.3d 337, 339 (10th Cir. 1994)

      We hold that the district court did not abuse its discretion. Rule 41(b) of

the Federal Rules of Civil Procedure permits dismissal for failure to comply with


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an order of the court. Fed. R. Civ. P. 41(b). When a dismissal is with prejudice it

“should be determined by reference to the Ehrenhaus criteria.” Mobley, 40 F.3d

at 341; see Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992). Those criteria

are “(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 . . . would be a likely

sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Ehrenhaus,

965 F.2d at 921 (internal quotation marks and citations omitted). But we have

never set forth factors to be considered when the dismissal is without prejudice,

and there are good reasons why the Ehrenhaus factors should not apply.

Dismissal with prejudice is an extreme sanction that “defeats altogether a

litigant’s right to access to the courts . . . .” Id at 920 (internal quotation marks

omitted). By contrast, dismissal without prejudice is not an extreme sanction

because the remedy is simply to cure the defect and refile the complaint. To be

sure, it can be an extreme sanction if the statute of limitations bars refiling. This

court has held that in such circumstances the district court “must explain why it

imposed the extreme sanction of dismissal.” Woodmore v. Git-n-Go, 790 F.2d

1497, 1499 (10th Cir. 1986); see also Gocolay v. N.M. Fed. Sav. & Loan Ass’n,

968 F.2d 1017, 1021 (10th Cir. 1992) (dismissal without prejudice when statute of

limitations has run is an extreme sanction which should only be used when lesser


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sanctions would not serve interests of justice). But when the plaintiff is free to

refile, no permanent consequences attach to the dismissal.

      The civil rights violations alleged by Mr. Florence began on August 16,

2004, when he slipped and was injured. The statute of limitations has not run and

Mr. Florence is free to refile. See Blake v. Dickason, 997 F.2d 749 (10th Cir.

1993) (applying two-year statute of limitations to § 1983 actions in Colorado).

Dismissal without prejudice was appropriate under the circumstances. Even using

the Ehrenhaus factors as a guide, we note that Mr. Florence suffers little

prejudice as a result of the dismissal and that he was fully warned of the

possibility of dismissal for failure to comply with the order to show cause. There

was no lesser sanction available under the circumstances (it would have been

pointless to impose a financial sanction), and Mr. Ehrenhaus has not shown that

he was unable to comply with the court’s order. Finally, the sanction was

appropriate to avoid interference with the judicial process. The Prison Litigation

Reform Act requires payment of an initial filing fee. 28 U.S.C. § 1915(b).

“These fee provisions are intended to reduce frivolous prisoner litigation by

making all prisoners seeking to bring lawsuits or appeals feel the deterrent effect

created by liability for filing fees.” Cosby, 351 F.3d at 1327 (internal quotation

marks omitted). The burden of prisoner litigation makes it necessary for district




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courts to require prisoners to pay filing fees or show cause why they cannot be

paid.

        We AFFIRM the judgment of the district court and DENY the motion to

proceed in forma pauperis.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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