* This order and judgment is not binding precedent, except under the doctrines of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 

### NOV 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL SEAN EDMOND,

Plaintiff-Appellant,

v. ATHLETE’S FOOT GROUP,

Defendant-Appellee. No. 96-1536 (D.C. No. 96-S-2208) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges

.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.- 2 -

Plaintiff-appellant Michael Sean Edmond appeals the district court’s dismissal of his civil rights complaint alleging that defenda nt The Athlete’s Foot Group, Inc. discriminatorily discharged him from its employ bas ed on his race. The district court construed Mr. Edmond’s pro se complaint as an actio n pursuant to Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. §§ 20 00e-2000e-17. Finding that Mr. Edmond had failed to exhaust his administrative rem edies, the district court dismissed sua sponte his complaint pursuant to Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction and pursuant to 28 U.S. C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. M r. Edmond also appeals the district court’s denial of his motion to strike filing fee. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, reverse in part, and remand for further proceedings. Subject matter jurisdiction may be raised sua spont e by the court at any time during the course of the proceedings. See McAlester v. United Airlines, Inc. , 851 F.2d 1249, 1252 (10th Cir. 1988). Exhaustion of administrative remedies is a jurisdictional prerequisite to filing Title VII cla ims in federal court. See Khader v. Aspin , 1 F.3d 968, 970 (10th Cir. 1993). “The existence of proper subject matter jurisdiction is a question of law which we review de novo .” Id. at 971. Mr. Edmond filed this suit in federal district court on September 19, 1996. By his own admission, his charge before the EEOC was “ recently just filed” and still- 3 -

pending at the time he filed his complaint. See R. Vol. I, tab 3 at 5. On October 23, 1996, the EEOC dismissed Mr. Edmond’s claims and is sued a right to sue letter. On October 31, 1996, eight days later, the district co urt dismissed Mr. Edmond’s complaint, concluding that because he had not exhau sted his administrative remedies, the court lacked subject matter jurisdiction. See Jones v. Runyon , 91 F.3d 1398, 1399 n.1 (10th Cir. 1996) (holding that the adminis trative process of filing with the EEOC (as opposed to whether the filing is timely) r emains a jurisdictional prerequisite to initiating suit in federal court), cert. denied , 117 S. Ct. 1243 (1997). For the following reasons, we vacate that portion o f the district court’s judgment dismissing Mr. Edmond’s claims for lack of subject matter jurisdiction and remand the case for further proceedings. From the record, it is clear that at the time the d istrict court entered its dismissal order, Mr. Edmond had neither informed th e district court of a change in the status of his EEOC charge nor amended his compl aint to allege exhaustion. Nonetheless, in deference to Mr. Edmond’s status as a pro se litigant, see Haines v.
Kerner , 404 U.S. 519, 520-21 (1972), and in light of his exhaustion prior to the entry of judgment, we conclude that the district court’s determination that it lacked subject matter jurisdiction to entertain Mr. Edmond’s claim s should be revisited. In so doing, we intend no comment on the merits of Mr. Ed mond’s claims.- 4 -

Mr. Edmond also contends that the district court erred in requiring him to pay a filing fee. On September 19, 1996, the district cou rt granted Mr. Edmond leave to proceed in forma pauperis pursuant to the Prison Li tigation Reform Act of 1995 (PLRA), 28 U.S.C. § 1915 (West Supp. 1997). PLRA r equires a prisoner bringing a civil action to pay the full amount of the filing fee. See id. § 1915(b)(1). In the event a prisoner is unable to pay the full amount o f the fee, an initial partial fee is assessed followed by monthly installments on the ba lance until the fee is paid in full.
See id. § 1915(b)(2). Pursuant to the certified copy of h is trust account filed with his motion to proceed in forma pauperis, the court assessed Mr. Edmond an initial partial filing fee. Mr. Edmond filed a motion to s trike the filing fee, alleging indigency. Because the district court determined that Mr. Edmond had shown cause as to why he could not pay the initial partial fili ng fee, the court allowed him to proceed, noting that he remained obligated to pay the fee through monthly installments. On appeal, Mr. Edmond continues to argue that becau se he is currently incarcerated and indigent the district court shouldnot have assessed any filing fee. In so doing, Mr. Edmond misunderstands PLRA’s purpo se and requirements. See Shabazz v. Parsons , ___ F.3d ___, No. 97-6025, 1997 WL 650958, at *2- 3 (10th Cir. Oct. 21, 1997) (holding the application of PLRA fee provisions to indigent prisoners not in violation of constitutional rights). Althou gh he cannot be denied access to the1 We also remind Mr. Edmond that pursuant to the district court’s order of

December 12, 1996, he was granted permission to proceed on appeal without payment of the $58.00 initial partial payment on the $105.00 appellate filing fee. We note that Mr. Edmond has not made a monthly payment since June 13, 1997, and has not responded to this court’s show cause order of July 23, 1997. We therefore continue to advise Mr. Edmond that he remains obligated to pay the full $105.00 fee in monthly payments whenever he has funds available. - 5 - courts because of his inability to pay the initial partial filing fee, see 28 U.S.C. § 1915(b)(4), the district court was correct in asses sing the fee and advising Mr. Edmond that he remains obligated to pay the full fi ling fee “when funds exist,” id. § 1915(b)(1). 1 Accordingly, we VACATE the judgment of the districtcourt dismissing Mr. Edmond’s Title VII claims for lack of subject matte r jurisdiction, and REMAND for further proceedings consistent with this order and judgment. In all other respects, the judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge