Butler. v. Rios , 283 F. App'x 632 ( 2008 )

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This order and judgment is not binding precedent except under the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.
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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
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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
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