Duarte v. Pugh

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 23 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NELSON OLIVER DUARTE,
Petitioner - Appellant,
v. No. 02-1177
D.C. No. 01-Z-2002
MICHAEL V. PUGH, Warden; (D. Colorado)
HAWK, Federal Bureau of Prisons
Director; COOKSEY; HARRELL
WATTS, General Counsel;
G.L. HERSHBERGER, Regional
Director; R. MADISON;
E. ROCKWELL; M. COLLINS;
V. SUDLOW; MARTIN; MARONI;
CONFER; L. SMITH DITO; SHERRY
BEICKER, in their personal and
official capacities,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.
*
This order and judgment is not binding precedent, except under the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.
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.
Pro se appellant Nelson Oliver Duarte filed a petition for habeas relief under
28 U.S.C. § 2241. The district court subsequently determined that the petition
asserted civil rights claims; accordingly, it directed Duarte to file a civil rights
complaint. In conjunction with the amended complaint, Duarte was ordered either
to pay the $150.00 filing fee or to submit a motion to proceed under 28 U.S.C.
§ 1915.
Section 1915 requires that a prisoner submit a certified trust fund account
statement covering the six-month period prior to the filing of the prisoner’s
complaint. See 28 U.S.C. § 1915 (a)(2). After receiving three extensions of time,
Duarte filed an account statement that was not certified by prison officials and did
not pertain to the relevant six-month time period. The district court dismissed his
complaint without prejudice. R. Doc. 22 at 1-3. Duarte argues that it was error to
dismiss his complaint because he has no control over whether prison officials
produce correctly certified documents.
We review dismissal for failure to cure a defect for abuse of discretion. Cf.
Denton v. Hernandez , 504 U.S. 25, 33 (1992) (dismissal of in forma pauperis
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complaint on ground of frivolousness under § 1915(d) reviewed for abuse of
discretion); Kuehl v. FDIC , 8 F.3d 905, 908 (1st Cir. 1993) (dismissal without
prejudice for failure to comply with Fed. R. Civ. P. 8 reviewed for abuse of
discretion).
While a pro se litigant’s pleadings are to be liberally construed, he must still
follow the rules of federal and appellate procedure. Ogden v. San Juan County ,
32 F.3d 452, 455 (10th Cir. 1994). It is Duarte’s responsibility to provide a
properly certified account statement in support of his motion to proceed under
§ 1915. If he was unable to obtain the proper documentation, he should have made
the district court aware of these circumstances, rather than attempting to explain
this defect for the first time on appeal. United States v. Mora , 293 F.3d 1213,
1216 (10th Cir.) (court may decline to address arguments raised for the first time
on appeal), cert. denied , 123 S. Ct. 388 (2002).
We conclude that the district court did not abuse its discretion in dismissing
the complaint without prejudice upon receiving a deficient account statement.
Accordingly, the judgment of the United States District Court for the District of
Colorado is AFFIRMED.
The district court denied Duarte’s motion to proceed under § 1915 on appeal
because he failed to present a reasoned, nonfrivolous argument on the law and
facts on the issues raised. R. Doc. 29 at 1. We agree and similarly DENY
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Duarte’s motion to proceed without prepayment of fees, and order immediate
payment of the fees due.
Entered for the Court
Harris L Hartz
Circuit Judge
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