* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NELSON OLIVER DUARTE,

Petitioner - Appellant,

v. MICHAEL V. PUGH, Warden; 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. No. 02-1177 D.C. No. 01-Z-2002 (D. Colorado)

ORDER AND JUDGMENT *

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Pro se appellant Nelson Oliver Duarte filed a petit ion for habeas relief under 28 U.S.C. § 2241. The district court subsequently determined that the petition asserted civil rights claims; accordingly, it direc ted Duarte to file a civil rights complaint. In conjunction with the amended complai nt, 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 cert ified trust fund account statement covering the six-month period prior to th e 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 cert ified 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. D uarte argues that it was error to dismiss his complaint because he has no control ove r 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-3-

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 liber ally 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 docu mentation, 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 argu ments raised for the first time on appeal), cert. denied , 123 S. Ct. 388 (2002). We conclude that the district court did not abuse i ts discretion in dismissing the complaint without prejudice upon receiving a de ficient 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 procee d under § 1915 on appeal because he failed to present a reasoned, nonfrivolo us argument on the law and facts on the issues raised. R. Doc. 29 at 1. We a gree and similarly DENY-4-

Duarte’s motion to proceed without prepayment of fe es, and order immediate payment of the fees due.

Entered for the Court

Harris L Hartz Circuit Judge