*

 This order and judgment is not binding precedent except under the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

October 17, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KYLE L. HOUSTON, a/k/a Delihue,

Plaintiff-Appellant,

v.

THE STATE OF COLORADO;

JUDGE GLORIA A. RIVERA, Denver

District Court; JUDGE HERBERT

STERN; THE COLORADO

ATTORNEY GENERAL OFFICE;

KEN SALAZAR; JOSEPH P.

SANCHEZ; COLORADO

DEPARTMENT OF CORRECTIONS;

DIVISION OF COMMUNITY

CORRECTIONS; A.F. STANELY;

JOE WHITE; CHRISTINE

MOSCHETTI; CATHIE HOLST;

BARRY PARDUS; JOE ORTIZ;

JEANEENE MILLER; DOUG

CURRAGAN, Independence Halfway

House Director,

Defendants-Appellees.

No. 08-1240

(D.C. No. 07-cv-1762-ZLW)

(D. Colo.)

ORDER AND JUDGMENT*

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
- 2 -

 Kyle Houston, a state prisoner in the custody of the Colorado Department

of Corrections, brought a tort claim pursuant to 42 U.S.C. § 1983 against the State

of Colorado and various state and prison officials. Pursuant to an Order issued on

October 25, 2007, Mr. Houston was granted leave to proceed in forma pauperis,

and a payment plan was established under 28 U.S.C. § 1915(b)(2). Mr. Houston

was warned that failure to comply with the payment plan would result in

dismissal of his action. 

After making his initial partial payment and two payments pursuant to his

payment plan, Mr. Houston ceased making payments, and the district court

ordered him to show cause why his action should not be dismissed for failure to

comply with the payment plan, and the requirements of § 1915(b)(2). Mr.

Houston responded that the court gave him conflicting directives regarding

monthly payments, but the district court found that no conflicting directives were

given. Accordingly, the case was dismissed by the district court on April 24, 2008

for Mr. Houston’s failure to make payments on his filing fee or show cause why

he could not make such payments in accordance with the court’s order and

§ 1915(b)(2). 

Mr. Houston then filed an “Objection” to the district court’s decision. 

Since that objection was filed more than ten days after the judgment, the district

court construed it as a Fed. R. Civ. P. 60(b) motion, and denied it because Mr.

Houston simply reargued the same claims he made in his earlier pleadings (that
1

 In the course of denying Mr. Houston’s Rule 60(b) motion, the district

court did revise its initial dismissal order to indicate that it was without, not with,

prejudice. Of course, Mr. Houston does not seek on appeal to disturb that aspect

of the district court’s decision.

- 3 -

the district court gave conflicting directives regarding monthly payments) and did

not assert extraordinary circumstances that would support reconsideration of the

order of dismissal. Mr. Houston’s Rule 60(b) motion was filed too late to toll the

time for appeal of his underlying case, see Fed. R. App. P. 4(a)(4); accordingly

this appeal is limited to consideration of whether his Rule 60(b) motion was

improperly denied.1

 

In reviewing the district court’s denial of Mr. Houston’s Rule 60(b) motion,

we may reverse only in the event of an abuse of discretion. Servants of the

Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). After a careful review

of Mr. Houston’s brief and the record in this appeal, and affording them the

generous reading due pro se filings, see Van Deelen v. Johnson, 497 F.3d 1151,

1153 n.1 (10th Cir. 2007), we discern no persuasive reason why the district

court’s dismissal should be reconsidered, see Van Skiver v. United States, 952

F.2d 1241, 1243 (10th Cir. 1991) (“[r]elief under Rule 60(b) is . . . warranted only

in exceptional circumstances”), and, accordingly, we affirm. Mr. Houston is 
- 4 -

reminded that he must continue making payments until the full balance of the

appellate filing fee in this matter is paid.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge