FILED

United States Court of Appeals

Tenth Circuit

October 2, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LEONARD BALDAUF,

Plaintiff-Appellant,

v.

FRANCES GAROUTTE; EUGENE E.

ATHERTON; JOHN STONER;

STEVE SCHUH; CATHY SLACK;

VICKY RIDDLE; MIKE

ARELLANO; ED GILLESPIE;

DONALD MCCALL; GLORIA

BREIDENBACH; GARY PITTMAN;

MIKE WEBB; GERALD KNAPIC;

JOSEPH WILLIAM SIMS; DANIEL

GALLAGHER; DAVE LINAM;

KARRY PAINE; WILLIAM BEARD;

JAMES HALSTEAD; H. BENNETT;

CHARLES SHANNON; TOM

MARTIN; ELIAS RINCON; RON

LEYBA; JOHN HADLEY; ROBERT

STOCKMAN; GABE HERNANDEZ;

SEAN PRUITT; PAM KING; MATT

GOODWIN; JERRY AWMILLER;

RHONDA CORETTI; TERESA

REYNOLDS; DINEEN CRANDALL;

RICHARD FLORES; WESS

LEHMAN; JULIAN PADILLA;

CHRIS STARCER; GALE GRAHAM;

CHRISTIAN SNELSON; DAVID

SCHLOTTERER; WERMER;

SCAVARDA; LUSK; BELL; CAREY;

DECLUSIN; CORTEZ; E. MILLER;

JOE ORTIZ; LARRY REID; MORA;

RICHARD WRIGHT; DAN FOSTER;

THOMAS; AVANT; JAMES

No. 07-1452

(D.C. No. 1:03-CV-01104-REB-CBS)

(D. Colo.)
* 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value

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

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MICHAUD; DON LAWSON;

ZANDER; OWENS; PHILIPS;

BOB FLORES; AMY HOUGH;

BRAD ROCKWELL; CATHY

HOLST,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.

This is an appeal after remand of plaintiff-appellant Leonard Baldauf’s

42 U.S.C. § 1983 civil rights case. The district court dismissed the § 1983 action

because of Baldauf’s “failures to comply adequately with 28 U.S.C. § 1915 and

the court’s orders regarding partial filing fee payments.” R. Vol. II, doc. 237 at

2. Baldauf, appearing pro se, argues that 1) his motion for default should have

been granted; 2) his failure to pay the filing fee was the fault of his custodian, the

Colorado Department of Corrections (CDOC); 3) the district court improperly

treated his request for counsel as a request for private counsel when, in fact,
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Baldauf requested an interim appointment of class counsel pursuant to Fed. R.

Civ. P. 23(g); and 4) exhaustion should not bar his claims. Our jurisdiction arises

under 28 U.S.C. § 1291. We review dismissal for failure to comply with court

orders for abuse of discretion, Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.

2003). Having found no such abuse, we affirm.

As mentioned above, Baldauf argues that CDOC failed to make payments

on his behalf. That argument is foreclosed by Cosby, 351 F.3d at 1332 (refusing

to excuse prisoner’s failure to pay on this ground because “it was still Plaintiff’s

obligation to notice this lapse and not spend the money until the required

payments were made to the court”). Baldauf’s argument that since the court’s last

fee-payment order he has complied with § 1915 and, implicitly, should therefore

be excused from prior payment defaults is similarly unavailing. The last order

issued by the district court was not the first time Baldauf had been placed on

notice that failure to make payment may result in dismissal without further notice. 

See Recommendation of United States Magistrate Judge, R. Vol. II, doc. 226 at

16. 

Because we affirm the district court’s dismissal of this action for failure to

comply with 28 U.S.C. §1915, it is unnecessary for us to reach the other issues

Baldauf raises on appeal. Baldauf’s motion to proceed on appeal without

prepayment of fees is GRANTED. Baldauf is reminded that he remains obligated

to make partial payments to this court until the entire appellate filing fee is paid
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in accordance with §1915(b). The mandate shall issue forthwith. This appeal

counts as a strike against Plaintiff under 28 U.S.C. §1915(g).

The judgment of the district court is AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge
07-1452, Baldauf v. Garoutte

PORFILIO, Circuit Judge

I concur in the judgment but respectfully dissent to the grant of IFP status.