UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

STEVEN E. HILL, 

 Plaintiff - Appellant, 

v. 

FORT LEAVENWORTH 

DISCIPLINARY BARRACKS; FNU 

LNU, three unknown soldiers, 

 Defendants - Appellees. 

No. 16-3097 

(D.C. No. 5:15-CV-03256-SAC-DJW) 

(D. Kansas) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges. 

_________________________________ 

 Steven E. Hill, a prisoner currently in federal custody and proceeding pro se, 

appeals the district court’s dismissal of his complaint, in which he claims he was 

mistreated by soldiers at Fort Leavenworth while being transported for medical care. 

The district court dismissed the complaint without prejudice after Mr. Hill failed to 

comply with the district court’s order to pay an initial partial filing fee, as required 

by the Prison Litigation Reform Act (PLRA). We affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 30, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND

 On November 12, 2015, Mr. Hill filed a complaint in the United States District 

Court for the District of Kansas against Fort Leavenworth and three unknown 

soldiers (collectively, Defendants). In his complaint, he alleges the Defendants were 

negligent and recklessly disregarded his safety and welfare as a prisoner when they 

drove erratically while transporting him for medical care. In filing his complaint, Mr. 

Hill failed to pay the filing fee or to use the correct forms. The district court granted 

Mr. Hill leave to correct the deficiencies and notified him that the case would be 

dismissed if they were not corrected by December 14, 2015. On November 23, 2015, 

Mr. Hill filed using the correct forms, and he also submitted a motion for leave to 

proceed in forma pauperis (IFP). In conjunction with his IFP motion, he submitted 

his prisoner account statement, which showed a balance of over $124. 

 On March 31, 2016, a magistrate judge granted Mr. Hill’s IFP motion and 

provided him fourteen days (until April 14, 2016) to pay the initial $16.50 filing fee 

or risk dismissal without further notice. On April 11, 2016, Mr. Hill filed a “Motion 

to Proceed Indigent,” explaining that his prison account was “below $10.00” and that 

he did not know when his pay would increase to the amount necessary to pay the 

filing fee. Mr. Hill attached no evidence to support this motion, and he failed to pay 

the $16.50 partial filing fee by the April 14 deadline. 

 On April 22, 2016, the district court dismissed his case without prejudice. The 

court found his allegations of indigence insufficient, particularly since Mr. Hill did 

not provide further evidence of his inability to pay, and because his previous account 
3 

statement showed regular deposits and a balance of over $124. Mr. Hill timely 

appealed. Shortly after filing his notice of appeal, Mr. Hill paid his initial partial 

filing fee with the district court. He also filed a motion for leave to proceed IFP on 

appeal, which the district court denied. In support of his motion, Mr. Hill filed an 

affidavit explaining that he could not pay his initial partial filing fee at the time 

because he had sent the money to his family or spent it on his own “comforts.” 

 Pursuant to Federal Rule of Appellate Procedure 24(a)(5), Mr. Hill then filed a 

motion to proceed IFP on appeal with this court. This court deferred ruling on the 

motion but directed Mr. Hill to pay the $505.00 appellate docketing fee with the 

district court, in partial payments pursuant to 28 U.S.C. § 1915(b), each time his 

account balance exceeds $10.00. We have jurisdiction under 28 U.S.C. § 1291. 

II. DISCUSSION 

On appeal, Mr. Hill raises several arguments that are tangential to the central 

question here, which is whether the district court properly dismissed the suit without 

prejudice.1

 We believe it did. Despite warnings from the district court, Mr. Hill failed 

to pay the statutorily mandated filing fee and failed to otherwise establish his 

inability to pay. The district court therefore did not abuse its discretion in dismissing 

the suit without prejudice, and we affirm. 

 1

 After filing his opening brief on appeal, Mr. Hill filed a “Motion for 

Summ[a]ry Judgment” with the district court. Because the district court had already 

dismissed Mr. Hill’s case, it advised him to pursue his arguments in this court. Ten 

days later, Mr. Hill re-filed the summary judgment motion in this court, in which he 

argues the merits of his claims. Because we affirm the district court’s decision 

dismissing the case, we do not address Mr. Hill’s summary judgment motion. 
4 

 Federal Rule of Civil Procedure 41(b) provides that district courts may dismiss 

an action if a plaintiff fails “to comply with [the Federal Rules of Civil Procedure] or 

a court order.” And “[w]e review for abuse of discretion a district court’s dismissal 

for failure to comply with a court order.” Cosby v. Meadors, 351 F.3d 1324, 1326 

(10th Cir. 2003). Moreover, when a dismissal under Rule 41(b) is without prejudice, 

“a district court may, without abusing its discretion, enter such an order without 

attention to any particular procedures.” AdvantEdge Bus. Grp. v. Thomas E. 

Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009). 

Here, the district court ordered Mr. Hill to pay an initial partial filing fee as 

mandated by the PLRA. The PLRA provides that “indigent prisoners need not pay 

federal court filing fees in full prior to initiating litigation or an appeal,” but they 

must make monthly partial payments to satisfy the fee, and “[t]he amount of the 

initial payment depends on the average deposits to and balance in the prisoner’s 

inmate account.” Cosby, 351 F.3d at 1326. Specifically, the PLRA provides that 

prisoners must pay an initial partial filing fee of “20 percent of the greater of--(A) the 

average monthly deposits to the prisoner’s account; or (B) the average monthly 

balance in the prisoner’s account for the 6-month period immediately preceding the 

filing of the complaint or notice of appeal.” 28 U.S.C. § 1915(b)(1). The district court 

in this case imposed a fee of $16.50, the calculation of which Mr. Hill does not 

challenge on appeal. 
5 

 Instead, Mr. Hill stresses that he “did not have the money at that time,” and 

that the court ignored his demand “to be notified a[t] least a month before the need” 

to pay. But as we explained in Cosby, 

when a prisoner has sufficient income to pay a monthly partial filing fee 

and instead spends his money on amenities at the prison canteen, he 

cannot be excused for failing to make the required partial payments. If a 

prisoner has the means to pay, failure to pay the filing fee required by 

§ 1915(b) may result in the dismissal of a prisoner’s civil action. In 

addition, if a court order requires partial payments, the Federal Rules of 

Civil Procedure allow a district court to dismiss the action for failure to 

comply with the order. 

351 F.3d at 1327 (citation omitted). It is true that Mr. Hill lacked sufficient funds to 

pay the partial initial filing fee on the day his “Motion to Proceed Indigent” was 

filed, but he received a deposit the very next day bringing his account balance to 

nearly $100.00. And deposits for roughly the same amount were made regularly each 

month to his account. Mr. Hill may very well have prioritized the need for 

“comforts” over his obligation to pay the $16.50 filing fee, but this of course does not 

excuse his failure to comply with the district court’s order. Indeed, Mr. Hill chose 

those comforts over the ability to pursue his litigation. See Cosby, 351 F.3d at 1327 

(explaining that the PLRA’s fee provisions are specifically intended to “reduce 

frivolous prisoner litigation by making all prisoners seeking to bring lawsuits or 

appeals feel the deterrent effect created by liability for filing fees” (internal quotation 

marks omitted)). We therefore affirm the district court’s dismissal without prejudice. 

 We also deny Mr. Hill’s request to proceed IFP on appeal. “To qualify for in 

forma pauperis status, a petitioner must show ‘a financial inability to pay the required 
6 

fees’ and ‘a reasoned, nonfrivolous argument on the law and facts in support of the issues 

raised on appeal.’” Scott v. Milyard, 350 F. App’x 213, 216 (10th Cir. 2009) 

(unpublished) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 

1997)). The district court denied Mr. Hill’s motion to proceed IFP on appeal because he 

failed to present a reasoned, nonfrivolous argument challenging the district court’s 

dismissal of his suit on procedural grounds. For the same reason, we deny his renewed 

IFP motion before this court on appeal. 

III. CONCLUSION

 We DENY the motion to proceed IFP and DISMISS the appeal. We advise 

Mr. Hill that he is responsible for the immediate payment of the unpaid balance of his 

appellate filing fee. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge