                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           FEB 5 2001
                          FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DARRYL J. SMITH,

              Plaintiff-Appellant,

    v.                                                  No. 00-1013
                                                    (D.C. No. 99-Z-2107)
    JOEL KNOWLES, Warden, USP;                            (D. Colo.)
    TERRY FINNEGAN, USP Florence,
    Hospital Administrator; DAVID
    REITER, Assistant Hospital
    Administrator; ROBERT WILLIAMS,
    DR., DIRECTOR OF MEDICAL
    SERVICES; T. GARCIA, Physician
    Assistant; V. HERNANDEZ,
    Physician Assistant; USA; JOHN
    ASHCROFT, Attorney General; *
    KATHLEEN HAWK, Director of the
    BOP; THE DISTRICT OF
    COLUMBIA; D.C.
    DEPARTMENT OF CORRECTIONS;
    MARGARRETT MOORE, Director;
    VINCENT GIBBONS, Warden of
    Central Facility, P.O. Box 25,
    Lorton, Virginia 22199,

              Defendants - Appellees.


                          ORDER AND JUDGMENT            **




*
      Pursuant to Fed. R. App. P. 43(c)(2), John Ashcroft is substituted for Janet
Reno, Attorney General, as a defendant in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before BRORBY, PORFILIO , and BALDOCK , 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.

       Plaintiff Darryl J. Smith, a federal prisoner proceeding pro se, appeals the

district court’s December 14, 1999 order dismissing his civil rights case without

prejudice for failing to produce his prison account records to support his

application to proceed in forma pauperis. He claims he paid the filing fee of

$150.00 to the District of Columbia District Court before the case was transferred

from that court to the District of Colorado. Accordingly, he argues, he was not

required to submit his prison account statement. He seeks to have his case

reinstated in the district court.

       The court records reflect that Mr. Smith paid the filing fee to the District of

Columbia District Court, but that court did not forward the payment to the District

of Colorado until after the case had been dismissed. By the time the funds were


 (...continued)
**

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.

                                         -2-
received in Colorado, this appeal had been filed, so they were treated as the filing

fee for the appeal. The appellate filing fee was $105.00; therefore, $45.00 was

returned to Mr. Smith on May 9, 2000.

       We review for an abuse of discretion the district court’s decision to dismiss

the complaint without prejudice for failure to provide prison account statements,

as required by 28 U.S.C. § 1915(a)(2).      Cf. Denton v. Hernandez , 504 U.S. 25, 33

(1992) (dismissal of frivolous action reviewed for abuse of discretion);    Schlicher

v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997) (same). “An abuse of discretion

occurs when the district court bases its ruling on an erroneous conclusion of law

or relies on clearly erroneous fact findings.”     Kiowa Indian Tribe of Okla. v.

Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998).

       Because the district court was unaware of the filing fee paid to the District

of Columbia District Court, the order to dismiss the complaint was entered on

incorrect information. An abuse of discretion occurred because the court based

its dismissal order on this error of fact. Accordingly, the case is remanded for

reinstatement of the complaint on the condition that Mr. Smith resubmit the

remainder of the district court filing fee of $45.00 to the Colorado District Court.

The amount of $105.00 that was treated as the filing fee for this appeal shall be

applied to the district court filing fee. Under the circumstances, the filing fee for

this appeal is waived.


                                             -3-
      Mr. Smith filed a letter requesting that his file be transferred back to the

district court under a new judge, which we construe as a motion to recuse. The

motion to recuse is denied.   See 28 U.S.C. § 455.

      The judgment of the United States District Court for the District of

Colorado is REVERSED, and the case is REMANDED for further proceedings as

indicated above. The filing fee for this appeal is waived. The mandate shall

issue forthwith.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




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