* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. **See** Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 22 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JONATHAN PALOZIE,

Plaintiff-Appellant, No. 04-1074

v. Dist. of Colo. HERSHBERGER, HOOD, LEYBA, OSAGIE, TRAPP, CARR, FRICKEY, SCHIEFELBEIN, and 50 unknown prison officials in U.S.P. Florence, Colorado, Defendants-Appellees. (D.C. No. 04-ES-91)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Plaintiff-Appellant Jonathan Palozie, a federal pri soner appearing pro se, filed a complaint in the district court alleging th at prison officials subjected him to cruel and unusual punishment. The magistrate ju dge ordered Palozie to submit-2-

his complaint and motion to proceed in forma pauper is (IFP) on the proper forms and, as required by 28 U.S.C. § 1915(a)(2), to submit a certified copy of his trust fund account statement for the six-month period pre ceding the filing of his complaint. The order further warned that the compl aint would be dismissed without prejudice if Palozie failed to cure these d eficiencies within thirty days. Although Palozie apparently filed with the districtcourt a copy of his inmate trust fund account, the account statement di d not cover the entire sixmonth period preceding the filing of his complaint. Palozie also failed to submit his complaint and IFP motion on the proper forms wi thin the specified time period. Accordingly, the district court dismissed Palozie’s complaint without prejudice for failure to cure the deficiencies and denied as moot Palozie’s motion to proceed IFP. This appeal followed. Having reviewed the record before us, we agree withthe district court that Palozie never fully complied with the order instruc ting him to cure the deficiencies. We note that the language of § 1915( a)(2) is not permissive: a prisoner seeking to bring a civil action under § 1915 “ **shall** submit a certified copy of the trust fund account statement (or instit utional equivalent) for the prisoner for the 6–month period immediately precedi ng the filing of the complaint or notice of appeal.” § 1915(a)(2) (emphasis added ). Having failed to satisfy the magistrate judge’s order, the district court correc tly dismissed the complaint-3-

without prejudice, and Palozie’s appeal is prematur e and fails to state a claim on which relief may be granted. **See** § 1915(e)(2)(B)(ii). Although we may not consider the merits of Palozie’ s appeal at this time, we note that the district court dismissed the compl aint and denied the IFP motion without prejudice. As such, provided that he can m eet all the procedural and jurisdictional requirements, Palozie may refile his complaint and IFP motion in the district court. We DISMISS this appeal and DENY the motion for oral argument. We also GRANT the motion to pay the filing fee in part ial payments and remind the appellant that he is obligated to make partial paym ents until the entire fee has been paid. Entered for the Court Timothy M. Tymkovich Circuit Judge