*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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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

APR 21 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EZEKIEL EMANUEL HOUSE,

Plaintiff, 

RICHARD TYLER,

Plaintiff - Appellant,

v.

No. 04-4300

(D.C. No. 2:04-CV-383-JTG)

(D. Utah)

STATE OF UTAH; SALT LAKE

COUNTY; OLENE S. WALKER,

Governor; AARON D. KENNARD,

Sheriff, Salt Lake County; PAUL

CUNNINGHAM, Sheriff’s Deputy,

A.D.C.; TROY DIAL, Sheriff’s

Deputy, A.D.C.,

Defendants - Appellees.

ORDER AND JUDGMENT*
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Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

Plaintiff Richard Tyler, a prisoner proceeding pro se, appeals the district

court’s dismissal of his suit for nonpayment of filing fees. We exercise

jurisdiction under 28 U.S.C. § 1331 and affirm. 

On April 29, 2004, Plaintiff and 48 other prisoners, among them Ezekiel

Emanuel House, filed this suit, naming the State of Utah, Salt Lake County, the

Salt Lake County Sheriff’s Office Jail, Governor Olene S. Walker, sheriff Aaron

D. Kennard, sheriff’s deputies Paul Cunningham and Troy Dial, and “all [the

county jail’s] corrections officers and superior offices” as defendants. Complaint

(4/29/2004) at App. C-6 - C-8. Although the original plaintiffs labeled their suit

a class action on the civil cover sheet, the complaint names 49 prisoner plaintiffs

individually. Moreover, a plaintiff may not serve as class representative pro se

“because the competence of a layman is clearly too limited to allow him to risk

the rights of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321

(10th Cir. 2000) (internal quotation marks omitted). 

In their original complaint the prisoners raised a variety of contentions,

including that (1) the prison food was very poor; (2) officers confiscated items

purchased from the prison commissary; (3) officers beat prisoners, sometimes for

racial reasons; (4) the grievance procedure denied prisoners due process; and (5)

prison rules prevented prisoners from exchanging, selling, giving away, lending,
-3-

or offering any property. On appeal Plaintiff presses only the commissary-itemconfiscation claim. 

On May 5, 2004, a magistrate judge granted Plaintiff’s motion to proceed in

forma pauperis, ordering him to make periodic partial payments of the $150 filing

fee. The first payment of $0.87 was to be made within 30 days. On July 19,

2004, the district court dismissed the complaint without prejudice because

Plaintiff had failed to make the $0.87 payment. 

We review a district court’s dismissal for failure to make a court-ordered

filing-fee payment for abuse of discretion. See Cosby v. Meadors, 351 F.3d 1324,

1326 (10th Cir. 2003) (reviewing a dismissal with prejudice). A district court

abuses its discretion by committing legal error, relying on clearly erroneous facts,

or applying the law to the facts irrationally. See Soskin v. Reinertson, 353 F.3d

1242, 1247 (10th Cir. 2004). The district court did neither here; consequently, its

dismissal without prejudice was not an abuse of discretion. 

The district court calculated the $0.87 initial payment under 28 U.S.C.

§ 1915(b)(1). See Cosby, 351 F.3d at 1326–27 (describing statutory fee-payment

scheme). When a prisoner has the means to pay but fails to do so, the district

court may dismiss the action. Id. at 1327; Fed. R. Civ. P. 41(b) (authorizing

dismissal for “failure of the plaintiff to . . . comply with . . . any order of court”). 
-4-

Plaintiff does not contend that he made the $0.87 payment, that he was

unable to do so, that the payment was miscalculated under § 1915(b)(1), or that

dismissal without prejudice was an inappropriate remedy. Rather, his contentions

focus on the merits of his suit. Because the district court’s dismissal was without

prejudice, Plaintiff may yet obtain a merits decision: he need only stand ready to

make the necessary payments next time he goes to district court. 

Because we find no abuse of discretion, we AFFIRM. We GRANT

Plaintiff’s motion to proceed without prepayment of the appellate filing fee, but

remind him that he remains obligated to make partial payments to this court until

the entire fee is paid. This appeal counts as a strike against Plaintiff under 28

U.S.C. § 1915(g). 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge