UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RODOLFO RODRIGUEZ, Plaintiff - Appellant,

v. AMTRAK; J. PERRY; C. CHAVEZ, Defendants - Appellees. No. 20-2053 (D.C. No. 1:19-CV-00111-MV-SMV) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and EID , Circuit Judges. **

________________ _________________ Pro se 1 plaintiff Rodolfo Rodriguez, a fe deral inmate, appeals the district court’s dismissal of his 42 U.S.C. § 1983 co mplaint for failure to pay filing fees. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. We also grant Rodriguez’s motion to proceed in forma pauperis

.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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. 1 Because Rodriguez is proceeding pr o se, we liberally construe his filings. United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). That said, liberally construing a pro se filing does not include supplying additional factual allegations or constructing a legal theory on the appellant’s behalf. Whitney v. New Mexico , 113 F.3d 1170, 1173–74 (10th Cir. 1997)

. FILED United States Court of Appeals Tenth Circuit 

### August 5, 2020 Christopher M. Wolpert Clerk of Court2 I. Rodolfo Rodriguez is a federal inmate incarcerated in the Torrance County Detention Facility in Estanc ia, New Mexico. On February 8, 2019, Rodriguez filed this suit against Amtrak and certain DEA ag ents alleging infringement of his Fourth and Fourteenth Amendment rights. Rodriguez’s complaint challenges the circumstances of his arrest for heroin possession with in tent to distribute, which occurred while he was aboard an Amtrak train. On July 2, 2019, the magistrate judge granted Rodriguez’s motion to proceed in forma pauperis and ordered Rodriguez to make periodic payments of $15.76 toward the filing fee. The first payment of $15.76 was due no later than August 1, 2019, and the magistrate judge alerted Rodriguez that hi s suit could be dismissed if he did not make the payment by that dead line. Rodriguez failed to make this payment or show cause as to why he could not pay. Instead, he petitioned the district court a second time fo r leave to appear in forma pauperis . The magistrate judge dismissed this second petition on March 3, 2020, noting R odriguez already had leave to appear in forma pauperis

. On April 17, 2020, because Rodriguez st ill had not made th e required payment of $15.76 or shown cause as to why he could not, the distri ct court dismissed his case without prejudice under Rule 41(b) of the Fede ral Rules of Civil Procedure. On May 20, 2020, the district c ourt received a $16.00 partia l filing fee payment from Rodriguez.3 II. Under the Prison Litigation Reform Ac t, an indigent inmate appearing in forma pauperis need not prepay federal court f iling fees but may be ordered by the court to make partial paymen ts toward the filing fee. Cosby v. Meadors , 351 F.3d 1324, 1326 (10t h Cir. 2003); 28 U.S.C.A. § 1915. When a district court requires partial payments and the plaintiff has the means to make them but does not do so, the court may dismiss the complaint for fa ilure to comply w ith its order. Cosby , 351 F.3d at 1327. Even if a plaintiff eventually pays the overdue fee, the court still has the authority to di smiss the complaint without prejudice. Love v. Werholtz , 113 F. App’x 362, 363 (10th Cir. 2004). Before dismissing a complaint without pr ejudice for failure to comply with a court order, a court should ordinar ily consider the factors outlined by Ehrenhaus v. Reynolds : “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judici al process; . . . (3) the cu lpability of the litigant; (4) whether the court warned the party in advan ce that dismissal of the action would be a likely sanction for noncomplian ce; and (5) the efficacy of lesser sanctions.” 965 F.2d 916, 921 (10th Cir. 1992) (i nternal citations omitted); see also Mobley v. McCormick , 40 F.3d 337, 340–4 1 (10th Cir. 19 94) (holding the Ehrenhaus factors apply to Rule 41(b) involuntary dismissals). We review a district court’ s dismissal for failure to comply with a court order for abuse of discretion. Cosby , 351 F.3d at 1326. A dist rict court abuses its discretion when it “makes a clear error of judgment or exceed[s] the bounds of4 permissible choice in the circumstances.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co ., 497 F.3d 1135, 1143 (10th Cir. 2007) (internal citations omitted). III. We conclude that the dist rict court did not abuse its discretion in dismissing Rodriguez’s claim for nonpayment. On a ppeal, Rodriguez prim arily reiterates the merits of his case and never di sputes that he failed to pa y the filing fee by the August 19, 2019, deadline. Instead, Rodriguez argues that he fa iled to pay the filing fee on time because his mail had been delayed due to a change in his place of incarceration. R. at 173. He claims that this prevented him from rece iving notice of his case’s pending dismissal until after it was already dismissed. Id . Rodriguez’s argument is unpersuasive, however, because he did not file a change of address with the court until February 11, 2020—six mont hs after payment was due. Id. at 2–3, 158; see Fed. R. Civ. P. 5(b)(2)(C). While Rodri guez did eventually make a partial payment, it was nine months overdue. See Love , 113 F. App’x at 364 (affirming the district court’s Rule 41(b) dismissal where the plai ntiff “eventually paid the $24.00 fee . . . five months too late”). Furthermore, we agree with the district court that the Ehrenhaus factors weigh in favor of dismissal. Ehrenhaus , 965 F.2d at 921. Although the first factor—the degree of prejudice to the defendants—we ighs against dismissal because the defendants had not been served and the cour t had not completed screening, this does not overcome the weight of the other four factors. See Cosby , 351 F.3d at 1333; see5 also Garcia v. Berkshire Life Ins. Co. Of Am. , 569 F.3d 1174, 1182 (10th Cir. 2009) (upholding dismissal when most, but not all the Ehrenhaus factors were met). With respect to the second factor, Rodriguez’s nonpayment hindered the ability of the court to move forward on his case. As to the th ird factor, Rodriguez neither paid nor provided a valid reason fo r his failure to pay the fee for over nine months. As to the fourth fa ctor, Rodriguez was repeatedly warned that he must pay the fees and still failed to do so. Finally, as to the fifth factor, the district court was within its discretion in concluding Rodrig uez would not have complied with lesser sanctions such as fines. In sum, because Rodriguez did not make the required payment until nine months after the deadline—once his case had already been dismissed—and he provided no justification for his nonpaymen t, the district court did not abuse its discretion in dismissing his complaint. See Kouris v. Gurley , 272 F. App’x 724, 726 (10th Cir. 2008). IV. For these reasons, we hold that the distri ct court did not abus e its discretion in dismissing Rodriguez’s complaint for nonp ayment. We therefore AFFIRM the judgment of the district court. We al so grant Rodriguez’s motion to proceed in forma6 pauperis and remind him of his ob ligation under § 1915(b) to make payments until the appellate filing fee is paid in full.

Entered for the Court

Allison H. Eid Circuit Judge