* This order and judgment is not binding precedent, except under the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. 

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.
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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