F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 14 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN P. OLIVER,
Plaintiff - Appellant,
No. 02-1319
v. D.C. No. 02-Z-634
(D. Colorado)
UNITED STATES OF AMERICA,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Plaintiff-Appellant Steven P. Oliver, a federal prisoner appearing pro se,
appeals the dismissal of his federal civil rights complaint for failure to comply
with the district court’s order requiring him to pay an initial partial filing fee or
show cause why he has no assets or means by which to pay the fee. Our
jurisdiction arises under 28 U.S.C. § 1291 and we affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Mr. Oliver’s complaint alleges that since 1999, an unknown individual or
group of individuals has systematically engaged in the theft and forgery of his
incoming and outgoing mail. The complaint further claims that the alleged
interference with his mail has resulted in the submission of forged, altered, and
incomplete pleadings to the various federal district courts where he has had
lawsuits pending during the past three years. Mr. Oliver therefore argues that
because “no govt. agency will initiate investigation to stop [the] theft and
forgery,” R. Doc. 7 at 3, he has essentially been denied access to the courts in
violation of his constitutional rights. Id.
In addition to his complaint Mr. Oliver filed a motion seeking leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On April 22, 2002 the
district court granted the motion and ordered Mr. Oliver to either pay an initial
partial filing fee of nine dollars or show cause why he had no means by which to
pay the fee. In so doing, the district court informed Mr. Oliver that it would not
review the merits of his complaint until he complied with the order, and warned
that a failure to do so within 30 days would result in dismissal of the action. In a
subsequent order filed on May 14, 2002, the court denied several motions filed by
Mr. Oliver and granted him an extension of 30 days from the date of the order to
comply. On June 26, 2002, the district court entered an order and judgment of
dismissal finding that Mr. Oliver had failed to either pay the fee or show cause
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why he had no means by which to do so. On that basis, the district court
dismissed the action without prejudice and denied all pending motions as moot.
This appeal followed.
Mr. Oliver presents essentially two claims before this court. First, Mr.
Oliver argues that his refusal to pay the initial partial filing fee is “protected”
because the equal protection clause guarantees him the right to prevent a court
from ruling upon pleadings which appear to him to be unauthorized forgeries.
Aplt. Br. at B-11, B-17. Second, Mr. Oliver claims that there should be a system
in place to ensure that pleadings are not tampered with and that such a system
should be used in the present action to provide him with “nontamperable [sic]
copies of what the Court has received in my name, past, current and future.” Aplt.
Br. at B-19. Because we reject Mr. Oliver’s first claim, we decline to reach the
second inasmuch as it would require us to address the merits of his complaint.
We review for an abuse of discretion a district court’s dismissal for failure
to comply with a court order. See Mobley v. McCormick, 40 F.3d 337, 340, 341
(10th Cir. 1994) (reviewing for an abuse of discretion an involuntary dismissal
under Fed. R. Civ. P. 41(b) for failure to abide by the terms of a prior court
order); cf. Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983)
(holding that the decision to grant or deny in forma pauperis status lies within the
sound discretion of the district court). Accordingly, we turn to an analysis of
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whether the court abused its discretion by dismissing Mr. Oliver’s action for
failure to either pay the initial partial filing fee or show cause why he had no
means or assets by which to do so.
In 1996, Congress enacted the Prisoner Litigation Reform Act (“PLRA”),
which, inter alia, amended 28 U.S.C. § 1915 to require that “if a prisoner brings a
civil action or files an appeal in forma pauperis, the prisoner shall be required to
pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). We acknowledge
that the PLRA does not prohibit a prisoner from initiating a civil action where he
has “no assets and no means by which to pay the initial partial filing fee.” 28
U.S.C. § 1915(b)(4). However, where, as here, a prisoner fails to make such a
showing and also fails to pay the initial partial filing fee assessed by the court, the
district court may dismiss the action. See In re Smith, 114 F.3d 1247, 1251 (D.C.
Cir. 1997) (holding that under the PLRA, failure to comply with § 1915(b)(1)
“may result in dismissal of a prisoner’s action.”). Furthermore, the Federal Rules
of Civil Procedure permit a district court to exercise its discretion to dismiss an
action “for failure of the plaintiff to prosecute or to comply with ... any order of
court.” Fed. R. Civ. P. 41(b); see also Mobley, 40 F.3d at 340 n.1.
Significantly, Mr. Oliver does not contend on appeal that he lacks the
means to pay the fee or that he has in some way been denied the opportunity to do
so. Rather, Mr. Oliver states that he has chosen not to pay the fee, and contends
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that his refusal is constitutionally justified in light of what he perceives to be a
very real threat of theft or alteration of his legal correspondence. We disagree.
Even if Mr. Oliver could prove that some malevolent interloper has periodically
interfered with his outgoing mail, the fact remains that he has not so much as
attempted to comply with the district court’s order. Moreover, we fail to see how
requiring Mr. Oliver to pay such a fee, even if doing so might subject his
correspondence to a risk of theft or alteration, would have the effect of denying
him of any of his constitutional rights. Had he paid the initial partial filing fee,
Mr. Oliver could have then properly obtained a disposition on the merits of his
claim. This he failed to do. The district court did not abuse its discretion by
dismissing Mr. Oliver’s action without prejudice.
AFFIRMED. All pending motions are denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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