*

This order and judgment is not binding precedent except under the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

March 31, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CALVIN EUGENE BARNETT,

Plaintiff - Appellant, No. 08-7087

v. (E.D. Oklahoma)

CHARLES RAY, Warden; ROBERT

EZELL; BILL BOYD; DENNIS

JOHNSON; CARTWRIGHT;

MOORE; YANDALL; BREWER,

Defendants - Appellees.

(D.C. No. 08-CV-00157-JHP-SPS)

ORDER AND JUDGMENT*

Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.

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.
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Calvin Eugene Barnett, a state prisoner in the custody of the Oklahoma

State Penitentiary proceeding pro se, appeals the dismissal of his 42 U.S.C.

§ 1983 action for failure to pay the initial partial filing fee as ordered by the

court. We affirm.

BACKGROUND

Barnett filed a complaint alleging civil rights violations (basically

concerning the claimed destruction of his headphones during a prison lockdown)

pursuant to 42 U.S.C. § 1983. He sought leave to proceed in forma pauperis

(“IFP”) before the district court under 28 U.S.C. § 1915. On June 12, 2008, the

district court granted his § 1915 motion and ordered Barnett to pay the full

amount of the $350.00 filing fee in installments and to pay an initial partial filing

fee of $11.60 within twenty days, i.e., by July 2, 2008. Barnett failed to pay the

initial filing fee.

In a July 24, 2008 minute order, the magistrate judge to whom the matter

was referred granted Barnett’s “motion to release funds” and directed payment of

the initial $11.60 fee within fifteen days. Barnett failed to pay the fee. 

Accordingly, in a September 4, 2008 minute order, the district court dismissed,

without prejudice, Barnett’s action for failure to pay the initial partial filing fee in

accordance with the magistrate judge’s July 24, 2008 minute order. Final

judgment was entered the same day. In a September 15, 2008, minute order, the
1

On October 28, 2008, Barnett filed a motion in our court to proceed IFP on

appeal. That same day, we issued an order assessing costs and fees, payable in

partial payments, although we stated we would “defer ruling on the substantive

aspects of the request.” 10/28/08 Order at 1. We denied a subsequent motion to

proceed IFP on appeal as moot.

-3-

district court denied Barnett’s Fed. R. Civ. P. 59(e) motion for rehearing. Barnett

appeals that order.

DISCUSSION

We review a district court’s dismissal of a claim for failure to comply with

a court order to pay a filing fee for an abuse of discretion. Cosby v. Meadors,

351 F.3d 1324, 1326 (10th Cir. 2003). An abuse of discretion occurs when “the

trial court makes an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” Nalder v. W. Park Hosp., 254 F.3d 1168, 1174 (10th Cir. 2001)

(further quotation omitted).

We find that the district court did not abuse its discretion. Barnett’s pro se

brief does not attempt to explain his failure to pay, nor does it challenge the

district court’s dismissal. In his application to proceed IFP on appeal, he states

that he has “been in prison for 34 years, the only money that I have is in my

prison saving account. I only have about $321.63.” Motion for Leave to Appeal

Without Prepayment of Costs or Fees at 9.1

 In a Statement of Institutional

Accounts dated May 30, 2008, the Trust Fund Officer certified that the average

monthly balance in Barnett’s account for the six-month period immediately
2

As we explained in Cosby:

Under the 1996 Prison Litigation Reform Act (PLRA), indigent

prisoners need not pay federal court filing fees in full prior to

initiating litigation or on appeal. See 28 U.S.C. § 1915(b)(1). 

Ultimately, however, “the prisoner shall be required to pay the full

amount of a filing fee.” Id. The amount of the initial payment

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

inmate account. The statute provides:

The court shall assess, and when funds exist, collect, as

a partial payment of any court fees required by law, 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.

Id.

The remainder of the filing fee is to be paid in monthly

installments. The amount of each installment is prescribed by

§ 1915(b)(2):

After payment of the initial partial filing fee, the

prisoner shall be required to make monthly payments of

20 percent of the preceding month’s income credited to

the prisoner’s account. The agency having custody of

the prisoner shall forward payments from the prisoner’s

account to the clerk of the court each time the amount in

the account exceeds $10 until the filing fees are paid.

Cosby, 351 F.3d at 1326.

-4-

preceding was $58.02, and that 20% of that figure was $11.60. The officer also

certified that the average monthly deposits to Barnett’s account were $10.00, and

that 20% of that figure is $2.00.2

 The only further explanation Barnett provides is

contained in his “Rule 4.0 Motion for Rehearing,” where he similarly avers that

“he is a poor person without funds, or property, or relatives willing to assist him
-5-

in paying for filing the complaint. . . . [It is a violation of the Oklahoma

Constitution and the district court’s order dismissing his case] to require any man

to pay any costs of court, if he is a pauper, and without the means of doing so,

and to deny him the issuance of such process, or the services of the officers when

he is unable to pay for the same.” Motion at 3, R. Vol. 1 at 82. Barnett has

accordingly failed to persuade us that the district court abused its discretion when

it dismissed Barnett’s action without prejudice and denied his petition for

rehearing.

CONCLUSION

For the foregoing reasons, the district court’s orders are AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge