                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   December 13, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court
    TIM O TH Y JO H N K EN N ED Y ,

                Plaintiff-Appellant,

    v.                                                 No. 06-1075
                                                (D.C. No. 05-CIV-543-ZLW )
    W ARDEN REID , C.C.F.;                               (D . Colo.)
    ASSOCIATE W AR DEN FOSHEE,
    C.C.F.; PRO PERTY SGT. M ORR IS,
    C.C.F.; M S. LINDSEY, Case M anager
    II, C.C.F.; C.O. CORTEZ, C.S.P. M ail
    Room Supervisor,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.


         Appellant Timothy John Kennedy, a Colorado state prisoner, appears pro se

to appeal the dismissal of his civil rights claim brought under 42 U.S.C. § 1983.

The district court dismissed the claim because M r. Kennedy failed to pay an




*
       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not binding precedent except under the doctrines of law of the case, res judicata,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.
initial partial filing fee of forty-eight dollars. W e have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      M r. Kennedy alleges that prison staff at the Colorado Department of

Corrections (CDOC) Centennial Correctional Facility are continuously retaliating

against him for filing legitimate grievances and complaints. On M ay 23, 2005, a

magistrate judge granted M r. Kennedy leave to proceed in forma pauperis in the

district court, but ordered him to pay within thirty days an initial partial filing fee

of forty-eight dollars. If he could not pay the fee, M r. Kennedy was directed to

show cause why he had no assets or means to do so. The magistrate judge put

M r. Kennedy on notice that if he failed to comply with the order, either by paying

the fee or showing cause within the thirty-day period, his claim would be

dismissed. M r. Kennedy failed to comply with the fee order within the time

allotted. Consequently, on June 30, 2005, the district court dismissed the

complaint without prejudice.

      On appeal, M r. Kennedy argues that his failure to comply with the fee order

ought to be excused because CDOC officials refused to issue him a money order

so as to purposefully cause the dismissal of his claim. Based on the lack of

evidence supporting this claim, we find M r. Kennedy’s contention unpersuasive.

      W here, as here, the district court dismisses a plaintiff’s claim for failing to

comply with a court order, we review for an abuse of discretion. See Mobley v.

M cCormick, 40 F.3d 337, 340 n.1 (10th Cir. 1994). The Prison Litigation Reform

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Act (PLRA) provides that a “court shall assess and, when funds exist, collect, as a

partial payment of any court fees required by law, an initial partial filing fee.”

28 U.S.C. § 1915(b)(1). Under Fed. R. Civ. P. 41(b), a district court may, in its

discretion, dismiss an action “[f]or failure of the plaintiff to prosecute or to

comply with . . . any order of court.” But before a court dismisses an inmate’s

action for failing to pay an initial partial filing fee, the PLRA requires the court to

give the inmate an adequate opportunity to comply with the fee order. See

Redmond v. Gill, 352 F.3d 801, 803-04 (3d Cir. 2003).

      In this case, the district court assessed a forty-eight dollar initial partial

filing fee, and gave M r. Kennedy an adequate opportunity to comply with the

order by allowing him thirty days to either pay the fee or show cause why he had

no assets or means to do so. The court specifically warned M r. Kennedy of the

consequences if he failed to comply with the court’s order w ithin that time period.

Despite this warning, it was not until July 7, 2005— fifteen days after the

court-imposed deadline— that CDOC officials received M r. Kennedy’s request for

a money order to pay the fee. According to M r. Kennedy’s Inmate Banking

History, CDOC officials processed the request and issued the money order the

next day, on July 8. Then, as evidenced by a date and time-stamped receipt, the

district court received M r. Kennedy’s initial partial filing fee on July 11,

2005— nineteen days beyond the court-imposed deadline. Given this sequence of

events, it is apparent that M r. Kennedy failed to comply with the court’s order

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even though he had the means and an adequate opportunity to do so. It was

therefore within the court’s discretion to dismiss the claim. See Cosby v.

M eadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (“If a prisoner has the means to

pay, failure to pay the filing fee required by § 1915(b) may result in the dismissal

of a prisoner’s civil action.”).

      Nonetheless, M r. Kennedy maintains that CDOC officials delayed the

processing of his money order so as to purposefully cause the dismissal of his

claim. To support this allegation, M r. Kennedy refers us to a money order request

form dated June 9, 2005, that he claims was falsely denied for insufficient funds.

He argues that his Inmate B anking History proves he had enough money in his

account to cover the money order as of that date, and that the denial of his money

order for insufficient funds w as mere pretext for the intentional delay. W hile

these allegations are troubling, we find no evidence in the record to support them.

In fact, the record contains no evidence that M r. Kennedy even submitted this

particular request. The money order request form is not date-stamped, certified,

or otherwise authenticated. Although the form indicates that the request was

denied for insufficient funds, it was never signed by prison personnel. And while

the balance of M r. Kennedy’s account was sufficient to cover the forty-eight

dollar money order, his Inmate Banking History reflects no attempt to process the

purported transaction. In short, there simply is no evidence to substantiate

M r. Kennedy’s claim of malfeasance on the part of CDOC officials. On the other

                                         -4-
hand, there is ample evidence demonstrating that the court gave M r. Kennedy an

adequate opportunity to comply with the fee order, and that he failed to do so

within the time allowed. Given these circumstances, the district court’s dismissal

of M r. K ennedy’s claim comports with the requirements of the PLRA. See In re

Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997) (recognizing that failure to pay an

initial partial filing fee “may result in dismissal of a prisoner’s action” under

the PLRA). W e are therefore unable to say the district court abused its discretion

in dismissing the claim. The court’s dismissal without prejudice leaves

M r. Kennedy free to reinitiate his claim should he so choose. His request for the

return of legal documents filed during the course of this litigation is denied for

the reasons stated in the district court’s February 6, 2006 order.

      The judgment of the district court is AFFIRM ED. All other outstanding

motions are DENIED as moot.


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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