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 prisone r currently in federal cu stody and proceeding pro se, appeals the district court’s dismissal of his co mplaint, in which he claims he was mistreated by soldiers at Fo rt Leavenworth while being tr ansported for medical care. The district court dismissed the complaint without prejudice after Mr. Hill failed to comply with the district cour t’s order to pay an initial pa rtial filing fee, as required by the Prison Litigation Reform Act (PLRA). We affirm.

* 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 Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 Court2 I. BACKGROUND On November 12, 2015, Mr. Hill filed a complaint in the Unite d States District Court for the District of Kansas agai nst Fort Leavenworth and three unknown soldiers (collectively, Defendants). In his complaint, he alleges the Defendants were negligent and recklessly disregarded his sa fety and welfare as a prisoner when they drove erratically while transporting him for medical care. In filin g his complaint, Mr. Hill failed to pay the filing fe e or to use the correct forms. The district court granted Mr. Hill leave to correct th e deficiencies and notified hi m 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, a nd he also submitted a motion for leave to proceed in forma pauperis (IFP). In conjun ction with his IFP motion, he submitted his prisoner account statement, whic h showed a balance of over $124. On March 31, 2016, a magistrate j udge granted Mr. Hill ’s IFP motion and provided him fourteen days (until April 14, 2016) to pa y the initial $16.50 filing fee
or risk dismissal without fu rther notice. On April 11, 201 6, 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 incr ease to the amount n ecessary 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 insu fficient, particularly since Mr. Hill did not provide further evidence of his inability to pay, and because his previous account3 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 pa rtial filing fee at the time because he had sent the money to his fam ily 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 ju risdiction under 28 U.S.C. § 1291. II. DISCUSSION On appeal, Mr. Hill raises several arguments that ar e tangential to the central question here, which is whethe r the district court properly dismissed the suit without prejudice. 1 We believe it did. Despite warnings fro m the district court, Mr. Hill failed to pay the statutorily mandated filing fe e and failed to othe rwise establish his inability to pay. The district court therefore did not abus e its discretion in dismissing the suit without prejudi ce, and we affirm.

1 After filing his opening brief on a ppeal, 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 ar guments in this court. Ten days later, Mr. Hill re-file d the summary judgment motion in this court, in which he argues the merits of his claims. Because we affirm the distri ct court’s decision dismissing the case, we do not address Mr. Hill’s summary judgment motion.4 Federal Rule of Civil Pro cedure 41(b) provides that di strict 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 distri ct 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, en ter such an order without attention to any par ticular procedures.” AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc. , 552 F.3d 1233, 1236 (10th Cir. 2009). Here, the district court orde red Mr. Hill to pay an in itial partial filing fee as mandated by the PLRA. The PLRA provides th at “indigent prisoners need not pay federal court filing fees in full prior to in itiating litigation or an appeal,” but they must make monthly partial payments to sa tisfy the fee, and “[t]he amount of the initial payment depends on the average depos its to and balance in the prisoner’s inmate account.” Cosby , 351 F.3d at 1326. Specificall y, the PLRA provides that prisoners must pay an initial partial filing fee of “20 per cent of the great er of--(A) the average monthly deposits to the prisone r’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 th e money at that time,” and that the court ignored his demand “to be no tified a[t] least a m onth 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 am enities at the prison canteen, he cannot be excused for failing to make the required partial payments. If a prisoner has the means to pay, failu re to pay the fi ling fee required by § 1915(b) may result in the dismissa l of a prisoner’s civil action. In addition, if a court order requires pa rtial payments, the Federal Rules of Civil Procedure allow a district court to dismiss the acti on 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 da y 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 we re made regularly each month to his account. Mr. Hi ll may very well have pr ioritized th e 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 in tended to “reduce frivolous prisoner litigation by making all prisoners seeki ng to bring lawsuits or appeals feel the deterrent eff ect created by liability for fi ling fees” (internal quotation marks omitted)). We therefore affirm the di strict 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 fi nancial inability to pay the required6 fees’ and ‘a reasoned, nonfrivo lous 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 ar gument 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 imme diate payment of the unpaid balance of his appellate filing fee. Entered for the Court

Carolyn B. McHugh Circuit Judge