Frey v. D.D.A. Tim McCormack

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 7, 2005
TENTH CIRCUIT
Clerk of Court
JAY ALLEN FREY,
Plaintiff-Appellant,
No. 05-1061
v. (D.C. No. 04-Z-2439)
(Colorado)
D.D.A. TIM McCORMACK,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Jay Allen Frey, a state prisoner appearing pro se, appeals from the district
court’s dismissal of his civil rights complaint pursuant to 42 U.S.C. § 1983. The
district court dismissed his suit without prejudice because he failed to submit a
certified copy of his trust fund account as ordered by the court. Construing Mr.
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Frey’s pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we
deny his motion to proceed in forma pauperis (ifp) on appeal and therefore
dismiss the appeal.
Mr. Frey filed an application with the district court to proceed ifp pursuant
to 28 U.S.C. § 1915. He included a trust fund account statement that was
notarized but not certified by a prison official. On November 24, 2004, the
magistrate judge informed Mr. Frey that the ifp application was deficient because
the trust fund account statement he submitted was not certified by a prison
official. The judge ordered Mr. Frey to cure the deficiency within thirty days or
suffer dismissal of his claims without prejudice. On December 7, 2004, Mr. Frey
submitted another account statement that was notarized but not certified. The
district court dismissed the action without prejudice for failure to cure.
The Federal Rules of Civil Procedure permit a district court to dismiss an
action for failure to comply with a court order. See Fed. R. Civ. P. 41(b). We
review the district court’s dismissal of Mr. Frey’s suit for abuse of discretion.
See Mobley v. McCormick, 40 F.3d 337, 340 & n.1 (10th Cir. 1994). Subsection
(a)(2) of 28 U.S.C. § 1915 instructs that
A prisoner seeking to bring a civil action . . . without
prepayment of fees . . . shall submit a certified copy of the trust
fund account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the
filing of the complaint . . . , obtained from the appropriate
official of each prison at which the prisoner is or was confined.
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The § 1915 form used by Mr. Frey prominently lists this requirement in almost
identical language. Moreover, the magistrate judge explicitly informed Mr. Frey
that the account statement he had submitted “was not certified by a prison
official” and that he must cure this deficiency within thirty days or risk dismissal.
While Mr. Frey did respond in a timely fashion, he failed to address the
magistrate judge’s order by submitting the appropriately certified document.
Because Mr. Frey received adequate notice of the § 1915 requirement, sufficient
time to cure the deficiency, and proper warning of the penalty of dismissal for
failure to abide by the court’s order, the district court did not abuse its discretion
in dismissing the action without prejudice.
On appeal, Mr. Frey states that “[t]he court dismissed on my case because I
didn’t get the remidy of my financial records in time, and I had no control over
this,” Aplt. Br. at 16, and “I have no control of getting the proper paper work,
even when I’ve ask for it.” Id. at 3. He also states that “I have been moved with
out any notice, there-fore my paper work would never follow me. My mail never
was forwarded, nor were any kites I had written to fix any problems I court’s
asked me to fix.” Id. at 17. Even if Mr. Frey was moved without notice and
experienced difficulties in receiving his mail, these difficulties do not explain
why he neglected to tell the magistrate judge when he filed his response why he
could not follow the court’s order. Moreover, the record contradicts Mr. Frey’s
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explanations because prison officials did provide him an account statement
promptly after he requested it, see rec., doc. 4 at 3-4, and there is no indication
that he asked for the document to be certified. Having determined that the
dismissal of his suit is appropriate, we do not consider the merits of Mr. Frey’s
claims that his civil rights were violated.
Mr. Frey has also submitted an application to proceed ifp on appeal. He
has included a properly certified copy of his account statement, which indicates a
positive balance of $42.55. While Mr. Frey has demonstrated that he cannot pay
the filing fee, he has not otherwise met the requirement that he raise a
nonfrivolous issue. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.
1991). We therefore deny his application to proceed on appeal without payment
of the fee.
For the reasons stated above, we DENY Mr. Frey’s application to proceed
ifp, and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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