Cosby v. Meadors

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 10 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

GREGORY D. COSMO COSBY,

Plaintiff-Appellant,

v. No. 02-1540

N.R. MEADORS, Associate Warden
Custody (USP); B. VALLE, Sen.
Officer; RICK NUCI, Sen. Officer;
DONALD DURNING;
BUTCH FAORO; MARIO PILUSO,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 00-RB-267 (OES))

Submitted on the briefs: *

Gregory D. Cosmo Cosby, pro se.

R. Joseph Sher, Senior Trial Counsel, Constitutional Torts Staff, Paul Michael
Brown, Senior Trial Attorney, Constitutional Torts Staff, Torts Branch, Civil
Division, Washington, D.C., for Defendants-Appellees.

*
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.
John R. Mann of Kennedy & Christopher, P.C., Denver, Colorado, for
Defendant-Appellee Ronald Nuci.

Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.

HARTZ , Circuit Judge.

Plaintiff Gregory D. Cosmo Cosby, a federal inmate appearing pro se ,

appeals the dismissal of his federal civil rights complaint for failure to comply

with the district court’s orders requiring him to make monthly partial payments of

his filing fee or to show cause why he could not make the payments. We review

for 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).

Because we conclude that the district court did not abuse its discretion, we

affirm.

The issue here is not money per se. The amounts at stake, as will become

apparent as we recount the factual background, might not seem significant to

some outside prison walls. The issue, rather, is respect for the judicial process

and the law. Plaintiff must lose his right to pursue his claim in court because of

his utter unwillingness to make the minor sacrifices required by statute and by the

repeated directives of a patient district court. In disposing of this appeal, we have

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occasion to set forth the duties of indigent prisoners with respect to the payment

of filing fees.

I. PAYMENT OF FILING FEES BY INDIGENT PRISONERS

Under the 1996 Prison Litigation Reform Act (PLRA), indigent prisoners

need not pay federal court filing fees in full prior to initiating litigation or an

appeal. See 28 U.S.C. § 1915(b)(1). Ultimately, however, “the prisoner shall be

required to pay the full amount of a filing fee.” Id. The amount of the initial

payment depends on the average deposits to and balance in the prisoner’s inmate

account. The statute provides:

The court shall assess, and when funds exist, collect, as a partial
payment of any court fees required by law, an initial partial filing fee
of 20 percent of the greater of—

(A) the average monthly deposits to the prisoner’s
account; or

(B) the average monthly balance in the prisoner’s
account for the 6-month period immediately preceding
the filing of the complaint or notice of appeal.

Id.

The remainder of the filing fee is to be paid in monthly installments. The

amount of each installment is prescribed by § 1915(b)(2):

After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency
having custody of the prisoner shall forward payments from the

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 prisoner’s account to the clerk of the court each time the amount in
the account exceeds $10 until the filing fees are paid.

Although the matter is not without doubt, we interpret the word “income” in this

provision to include all deposits to the prisoner’s inmate account, whether the

deposit be earned income, a gift, or otherwise. The word “income” can be used to

denote gross receipts. See Lukhard v. Reed , 481 U.S. 368, 375 (1987) (“[G]eneral

and legal sources . . . commonly define ‘income’ to mean ‘any money that comes

in[.]’”). And this interpretation of the word produces consistency between

§ 1915(b)(2) (which provides that monthly payments equal 20% of the prior

month’s income ) and § 1915(b)(1) (which provides that the initial payment be

20% of the greater of average monthly deposits or average monthly balances ,

regardless of the source of deposits). We see no reason why Congress would

include, say, gifts for the purpose of calculating the initial payment while

exempting that source for the purpose of calculating monthly payments. Indeed,

given Congress’s declaration that “the prisoner shall be required to pay the full

amount of a filing fee,” we would expect it to proceed as any creditor and look to

all deposits to the prisoner’s account as potential sources for the payment.

Morever, we question whether Congress would have expected prison officials to

investigate whether a deposit to an inmate account was a gift from a parent, book

royalties, or deferred payments on a narcotics transaction. See Lucien v. DeTella ,

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141 F.3d 773, 776 (7th Cir. 1998) (“income” in § 1915(b)(2) refers to all deposits

to prisoner’s account).

These fee provisions are intended “‘to reduce frivolous prisoner litigation

by making all prisoners seeking to bring lawsuits or appeals feel the deterrent

effect created by liability for filing fees.’” In re Smith, 114 F.3d 1247, 1249

(D.C. Cir. 1997) (quoting Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir. 1996)).

“The PLRA is designed to require the prisoner to bear some marginal cost for

each legal activity.” Newlin v. Helman, 123 F.3d 429, 436 (7th Cir. 1997),

overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).

The obligation to pay is not unlimited. The PLRA does not prohibit a

prisoner from bringing a civil action or appealing a civil judgment when he has

no assets or means to pay an initial partial filing fee. See 28 U.S.C. § 1915(b)(4).

Also, as noted above, when the prisoner does receive money, only 20% can be

applied to a particular filing fee. And

[t]o further ensure that prisoners need not totally deprive themselves
of those small amenities of life which they are permitted to acquire
in a prison . . . beyond the food, clothing, and lodging already
furnished by the state, section 1915 allows payment to be taken from
the prisoner’s account only where the amount in the account exceeds
$10.

Shabazz v. Parsons, 127 F.3d 1246, 1248 (10th Cir. 1997) (internal quotation

marks omitted).

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 But when a prisoner has sufficient income to pay a monthly partial filing

fee and instead spends his money on amenities at the prison canteen, he cannot be

excused for failing to make the required partial payments. If a prisoner has the

means to pay, failure to pay the filing fee required by § 1915(b) may result in the

dismissal of a prisoner’s civil action. See In re Smith, 114 F.3d at 1251; Robbins

v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997). In addition, if a court order

requires partial payments, the Federal Rules of Civil Procedure allow a district

court to dismiss the action for failure to comply with the order. See

Fed. R. Civ. P. 41(b).

II. PLAINTIFF’S PAYMENT HISTORY

A. The Initial Order

When Plaintiff filed his complaint on February 7, 2000, the district court

granted him leave to proceed without prepayment of fees and without payment of

an initial partial filing fee because there were insufficient funds in his inmate

account. In accordance with § 1915(b)(2), the district court entered an order

stating:

Plaintiff remains obligated to pay the full amount of the required
$150.00 filing fee pursuant to § 1915(b)(1) regardless of the outcome
of this action. It is

FURTHER ORDERED that, until the $150.00 filing fee is paid
in full, [Plaintiff] shall make monthly payments to the court of
twenty (20) percent of the preceding month’s income credited to his
account or show cause why he has no assets and no means by which

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 to make each monthly payment. [Plaintiff] is directed to make the
necessary arrangements to have the monthly payments identified by
the civil action number on this order. In order to show cause, the
plaintiff must file a current certified copy of his trust fund account
statement. It is

FURTHER ORDERED that if [Plaintiff] fails to have the
appropriate monthly payment sent to the clerk of the court each
month or to show cause each month as directed above why he has no
assets and no means by which to make the monthly payment, the
Prisoner’s Civil Rights Complaint may be dismissed without
prejudice and without further notice.

R. Vol. I, Doc. 11, at 2-3.

B. Monthly Payments

The following discussion details Plaintiff’s repeated failure to remit the

required payments when he had funds available, even while he made discretionary

purchases that drained his account. In summary, we will see that during the

course of this litigation Plaintiff received income of $288.83, but, even after

several court orders directing him to make the required payments, he paid the

district court a total of only $7.14.

At the outset Plaintiff made no monthly payments for several months, but

he justified this failure to pay by submitting monthly statements of his inmate

account showing only $5.00 in income during this period and no balance over

$10.00. In November and December 2000, however, he neither made a payment

nor submitted an account statement. On January 25, 2001, the district court

issued an order to show cause, giving him fifteen days to make the required

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monthly payment or explain why he was unable to pay. Id., Doc. 60. The order

expressly warned Plaintiff that failure to comply with the order could result in the

dismissal of his action without further notice. Id. at 2.

Plaintiff mailed his response to the show cause order on January 31, 2001.

He attached his past-due account statements, which revealed that he had received

a money order deposit of $20.00 on November 20, 2000, and a check deposit of

$12.28 on December 15, 2000. Id., Doc. 62, at 17. Yet Plaintiff had made

no payments to the district court, as required by § 1915(b) and the district

court’s order, although he had spent at least $17.00 on discretionary purchases

between November 27, 2000, and January 19, 2001. 1

1
There are two primary types of debit transactions described in Plaintiff’s
account statements:

(1) “COMMISSARY FORM” debits, which appear to be payments that
Plaintiff authorized using a withdrawal consent form entitled “BP-199(45)
Request for Withdrawal of Inmate’s Personal Funds.” It is not always possible to
discern the purpose of these payments. When Plaintiff made payments to the
district court, there are matching “COMMISSARY FORM” debits described on
the accompanying account statements. Compare R. Vol. III, Doc. 186 with
Doc. 93, at 5; see also id., Docs. 201 and 215. When the prison automatically
deducted funds to reduce Plaintiff’s prior encumbrances under the prisoner’s
50/50 program, these reductions are also described as “COMMISSARY FORM”
debits. See, e.g., Vol. II, Doc. 71, at 4. Thus, out of an abundance of caution,
we have not categorized any of the “COMMISSARY FORM” debits as
discretionary purchases by Plaintiff, even though some may well be voluntary
withdrawals.

(2) “SALE/REGULAR” debits, which appear to be discretionary
purchases Plaintiff has made at the prison canteen. When we state that Plaintiff
has made discretionary purchases, we are referring only to debits described in his
(continued...)

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 In his response to the show cause order, Plaintiff stated that he had thought

no more statements were due because the pretrial conference had been held. He

apologized for his error and stated that he would not repeat it and would make

payments “as his financial ability allowed him.” He also asked the court to take

judicial notice that he had entered into the prison’s “50/50 program” and was

attaching a copy of the agreement. No copy of the agreement was attached,

although Plaintiff did attach an “Institution Supplement,” which contains an

official description of procedures for implementing the program. That document

suggests that the 50/50 program provides that half the prisoner’s income will be

used to pay certain prior debts, leaving the remainder for other use.

The district court discharged its order to show cause on April 12, 2001,

reasoning that Plaintiff would be able to make regular payments toward the filing

fee as a result of his participation in the 50/50 program. Id., Doc. 79, at 2. The

district court expressly advised Plaintiff, however, that:

the law and the Court’s previous Orders in this case require
[Plaintiff] to make a monthly filing fee payment every month until
the full filing fee is paid. . . . [Plaintiff] cannot voluntarily spend his

1
(...continued)
account statements as “SALE/REGULAR” debits.

Plaintiff’s account statements also describe “ENC./DISCIPLINE”
transactions, which appear to be encumbrances imposed against his account by
the prison as disciplinary sanctions. We have not categorized these
encumbrances as discretionary purchases.

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 monthly income, and then claim he is without funds to satisfy his
federal court filing fee obligations.

Id. The district court again warned Plaintiff that his complaint was subject to

dismissal if he did not make the required monthly payment or show cause why he

could not do so. Id.

Unfortunately, the court’s discharge of the show cause order was based on

a Plaintiff-induced misconception. As revealed when Plaintiff later filed a 50/50

agreement executed by him on November 27, 2001, the 50/50 program is not

available to pay debts arising under the PLRA. Id. Doc. 235, Exh. A; see

magistrate judge’s Report and Recommendation, Oct. 15, 2002, at 5 (“[T]he

[50/50] program does not encompass . . . PLRA filing fees incurred by the

prisoner . . . .”).

Not surprisingly, then, Plaintiff’s promise to make payments on his filing

fee was unfulfilled after he filed his response to the court’s show cause order.

Not only did he not make the required payments on his income in November and

December 2000, but he also failed to make the required payment of $3.00 based

on a $15.00 money order deposit to his inmate account in February.

Plaintiff next reported income in his financial report for July 2001. The

report showed receipt of a $20.00 money order on July 23 and a $10.00 money

order on July 25. In his filing Plaintiff asserted that the prison was failing to

send payments to the district court when money was deposited to his account. Id.

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Doc. 109, at 2. He claimed that he had made numerous attempts to send in the

proper withdrawal forms but they were returned, and that he had complained to

the prison’s financial offices but received no adequate reply. Id.

Plaintiff then failed to file the required October 2001 account statement,

and the district court issued a second show cause order on November 21, 2001.

Id., Doc. 140. Again, the district court warned Plaintiff that failure to comply

could result in dismissal of his complaint without further notice. Id. at 2.

In response to the second show cause order, Plaintiff said that his financial

report was delayed because he had been temporarily transferred to another

institution, and that he had in fact sent in the report on November 16, before the

show cause order had issued. (The report showed a November deposit of $6.20,

giving him a new balance of $36.20, but he made no payment to the district

court.) Id., Doc. 141, at 4. Plaintiff claimed in his response that he had signed

the necessary withdrawal forms to authorize payment to the district court, and it

was therefore the prison’s fault that payments were not being made. Id.,

Doc. 145, at 2.

Plaintiff’s next account statement shows that in December 2001 his $36.20

balance had dropped to $1.45, in part through discretionary purchases of $16.65.

R. Vol. III, Doc. 154, at 4. Plaintiff then received a deposit of $15.00 on

January 24, 2002. Id., Doc. 159, at 4. Plaintiff failed to make any payment

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toward his filing fee and complained again to the court that he was having trouble

getting the prison to send payments, but he provided no further explanation. Id.,

Doc. 162, at 1.

Subsequent account statements show receipt of a $10.00 money order

deposit on February 14, 2002, id., Doc. 163, at 4, a $20.00 money order deposit

on April 9, 2002, a performance pay deposit of $23.52 on April 10, 2002, a

$15.00 money order deposit on April 17th, id. , Doc. 176, at 4, and a performance

pay deposit of $26.04 on May 10, 2002. Thus, in the first five months of the

year, Plaintiff received income of $109.56, from which he owed $21.91 (20% of

$109.56) toward his filing fee. During that period he made discretionary

purchases of $58.73, but still no filing fee payments.

On June 18, 2002, while the show cause order of November 21, 2001, was

pending, Defendants filed a motion (the Motion to Dismiss), contending that the

court should dismiss Plaintiff’s complaint with prejudice as a sanction for his

failure to comply with the court’s numerous orders regarding filing fee payments.

Id., Doc. 183. Defendants pointed out that Plaintiff had failed to make any

payment toward his filing fee obligations in the twenty-eight months since he had

filed his complaint, although he had received to date about $200.00 in income.

Id. at 5-7. Defendants noted that Plaintiff had made numerous voluntary

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purchases throughout the litigation, rather than making payments to the district

court. Id. at 7.

Apparently coincidentally, Plaintiff sent his first payment to the court in

June. The prison check for $4.00 is dated June 21, 2002, but the withdrawal

from his inmate account occurred on June 13, predating the Motion to Dismiss.

Id., Doc. 186.

In response to Defendants’ motion, Plaintiff again claimed that despite his

frequent attempts to get prison authorities to make the necessary payments, the

prison’s financial and business officials were failing to do so. Id., Doc. 189, at

3, 10-13, and 14. He asserted that on August 28, 2001, he had authorized the

prison’s financial management to remove 20% from his account as money was

deposited and that he was not required to sign any additional withdrawal forms.

Id. at 4.

The letter Plaintiff attached as support for this claim, however, fails to

substantiate his assertion that he had authorized withdrawals for filing fees in this

case. His letter to the prison legal department did complain that the prison was

failing to send payments to the court in this case, and it did say that he wanted

the prison to send the filing fees to the district court whenever funds were

available. Id. at 10-12. But the letter also stated that the prison should

“personally leave me the *** alone,” id. at 10, and directed the prison not to

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remove any of his funds without his authorization, id. at 12. And although the

letter advised that Plaintiff was enclosing a withdrawal authorization form, id.,

no copy of such form is attached in the record copy. Likewise, a March 18,

2002, inmate request form attached to his response asked prison officials whether

he needed to sign a new withdrawal authorization form, id. at 14, but this

document does not support his claim that the prison was somehow impeding his

ability to make the necessary payments.

Significantly, Plaintiff’s failure to make the required monthly payments

continued. After the Motion to Dismiss was filed, Plaintiff clearly was able to

remit payments to the district court, and he does not contend otherwise. After all,

he had sent in a $4.00 payment in June. This amount, however, was far less than

the 20% of income that he owed. And he had the funds to pay more than the

$4.00. Plaintiff’s account statement shows that he had received a performance

pay deposit of $25.20 on June 10 and a cash deposit of $13.99 on June 13. Id.,

Doc. 193, at 5-6. Nonetheless, rather than making the required filing fee

payment, he made discretionary expenditures of $15.73 on June 13 and $15.05 on

June 20, ending the month with a balance of $.55 in his account.

On July 11, 2002, Plaintiff made a second payment to the district court, of

only $1.10. Id., Doc. 201. Plaintiff had received performance pay that month of

$21.60, he had at least $10.80 available for his personal use, and he made

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discretionary purchases totaling at least $9.50; yet he sent the court far less than

even the $7.84 he owed from his previous month’s income of $39.19. Id., Doc.

204, at 6. This, while the Motion to Dismiss was pending.

On August 15, 2002, Plaintiff sent to the district court his third and final

payment, a prison check for $2.04. This did not cover the $4.30 due out of his

July income of $21.60, much less his arrearages due from prior income. Id., Doc.

215. Although Plaintiff had received money order deposits of $20.00 on

August 12 and $10.00 on August 15, Doc. 217, at 5, Plaintiff once again failed to

use the income available to him to make his required payments.

On October 15, 2002, the magistrate judge recommended dismissal with

prejudice. Id., Doc. 222. The magistrate judge’s report and recommendation

thoroughly set forth Plaintiff’s history of nonpayment and insufficient payment,

and presented a detailed explanation and analysis of its findings and ultimate

conclusion that only the extreme sanction of dismissal would satisfy the interests

of justice. Id. This recommendation was adopted by the district court. Id., Doc.

237.

III. PLAINTIFF’S CLAIMS ON APPEAL

A. Alleged Difficulties with the Prison

On appeal Plaintiff alleges that the district court erred in dismissing his

lawsuit because he had done all he could to make the required payments. He

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contends that he had repeatedly told the district court that he was having trouble

getting the financial office at the prison to send the payments to the court. He also

complains that he was not granted an evidentiary hearing to establish his

compliance.

Plaintiff is correct that before dismissing a prisoner’s complaint for failure to

comply with an order regarding partial payments toward a filing fee, the district

court should ordinarily take reasonable steps to ascertain whether the prisoner

attempted to comply with the fee order by authorizing prison officials to withdraw

required payments. See Wilson v. Sargent , 313 F.3d 1315, 1320-21 (11th Cir.

2002) (finding abuse of discretion when district court dismissed for failure to make

initial filing fee payment without making inquiry into whether prisoner had

attempted to comply with fee order); Hatchet v. Nettles , 201 F.3d 651, 654 (5th Cir.

2000) (same). In this case, however, the record supports the findings below that

Plaintiff was not attempting to comply with the fee orders, and the district court

gave Plaintiff ample opportunity to submit evidence of compliance.

The only evidence Plaintiff presented in support of his allegation that the

prison was refusing to send his authorized payments is the August 28, 2001, letter

he sent to the prison’s legal department, in which he states that he had previously

authorized the prison to remove 20% from his account as money was deposited.

Id., Doc. 189, at 10-13. But he provided the court with no documents purporting

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to authorize such withdrawals. And the very letter upon which he relies is actually

strong evidence of his lack of cooperation. In it, Plaintiff states that he is not

going to sign any future withdrawal forms, and he tells the prison officials not to

remove any of his funds without his authorization. Id. at 10-12. Also probative of

Plaintiff’s failure to authorize withdrawals to pay the filing fee in this case are

copies of his account statements with notations that Plaintiff was under a PLRA

court order but had failed to sign a withdrawal-authorization form. See Vol. II,

Doc. 123, at 4; id., Doc. 141, at 4; Vol. III, Doc. 153, at 4; and id., Doc. 183, at

13 . (It is not clear, however, whether these notations refer to the PLRA orders in

this case or in one of Plaintiff’s numerous other cases pending in district court.)

Further suggesting that Plaintiff was not truly seeking to pay the filing fee by

authorizing payment by the prison is his conduct once his payments began in June

2002. Plaintiff makes no claim that the prison hampered him in making payments

from that time on. Yet he still failed miserably to comply with his obligations.

Although he received deposits of $90.79 from June 2002 until the dismissal of his

case, Plaintiff paid only $7.14 toward his filing fees.

The magistrate judge also properly took judicial notice that in several other

cases before the same district court, Plaintiff had refused to authorize the prison to

make withdrawals for court fees. Plaintiff has not disputed this fact.

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 Moreover, even assuming the truth of Plaintiff’s allegation that the prison

failed to make authorized payments, this does not excuse him from his obligations

under the fee orders. If Plaintiff had in fact directed the prison to make the

required payments and the prison had failed to do so, it was still Plaintiff’s

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

were made to the court:

A prisoner who fails to ensure that the required sum is remitted in one
month must make it up later . . . . If in a given month the prison fails
to make the required distribution from the trust account, the prisoner
should notice this and refrain from spending the funds on personal
items until they can be applied properly.

Lucien , 141 F.3d at 776. Plaintiff did not refrain from spending the monies owed

to the district court; rather, he repeatedly drained his account by making

discretionary withdrawals. Had Plaintiff retained the money he owed for filing

fees in this case, he would have had sufficient funds in his account to remit all the

past-due amounts when the Motion to Dismiss was filed (at which time he

managed to make a payment).

As for Plaintiff’s contention that he was entitled to an evidentiary hearing

before dismissal, we hold that the district court did not abuse its discretion in

proceeding on the record before it. By issuing repeated orders to show cause and

providing Plaintiff with multiple opportunities to produce a copy of any proper

authorization that had been ignored by the prison, the district court went beyond

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the procedures recommended in Wilson , 313 F.3d at 1320-22, and Hatchet , 201

F.3d at 654 (“[T]he district court should take reasonable steps to ascertain whether

the prisoner has complied with the order by allowing objections to a magistrate

judge’s report, issuing a show-cause order, communicating by telephone, fax, or e-

mail with officials of the custodial institution, issuing an order to the custodial

institution, or using any other method designed to obtain the relevant information.”

(citations omitted)).

B. Alleged Ex Parte Communication

Next, Plaintiff claims that the district court erred in dismissing his complaint

because it allowed an ex parte communication to influence its decision. Plaintiff

appears to contend that while Defendants’ Motion to Dismiss was pending, a prison

attorney told his prison-unit counselor that the case would be dismissed with

prejudice. On its face this communication is not a prohibited ex parte

communication because it does not allege any communication between an attorney

or party and a judicial officer. See D. Colo. Local Rule 77.2 (in the absence of

previous authorization, no attorney or party to any proceeding shall send letters,

pleadings, or other papers or copies directly to a judicial officer). There is no

evidence that any of these individuals had an improper conversation or

communication with the magistrate judge or district court, and neither the prison,

its attorney, or the unit counselor are parties in this case. Moreover, we do not find

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record support for Plaintiff’s claim that he informed the magistrate judge or district

court of any alleged ex parte communication. The documents Plaintiff attached to

his brief as support for this allegation do not support his claim, nor do we find any

support based upon an independent review of the record.

C. Dismissal with Prejudice

Finally, Plaintiff challenges the district court’s dismissal of his complaint

with prejudice as a sanction for his failure to comply with court orders. See Aplt.

Reply Br., at 9. Under Federal Rule of Civil Procedure 41(b), a district court may

dismiss an action with prejudice if the plaintiff fails “to comply with [the Federal

Rules of Civil Procedure] or any order of court.” Before choosing the sanction of

dismissal, the district court considered and addressed the relevant factors set forth

in Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992): (1) the amount of

actual prejudice to the opposing party, (2) the degree of interference with the

judicial process, (3) the litigant’s culpability, (4) whether the litigant was warned in

advance that dismissal was a likely sanction, and (5) whether a lesser sanction

would be effective. The court found that factor (1) would not justify dismissal but

the other factors called for that sanction. As noted and rejected above, Plaintiff’s

claim is that he was not culpable. Plaintiff does not, however, otherwise dispute

the district court’s findings with respect to the Ehrenhaus factors, nor do we find

any error in the district court’s analysis of the relevant factors.

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 In particular, we are struck by Plaintiff’s defiance of the court. P laintiff was

warned from the outset of this litigation that failure to make the required payments

could result in dismissal of his complaint, R. Vol. I, at Doc. 11; he was expressly

warned in April 2001 that he could not make voluntary withdrawals and then claim

to have insufficient assets to make his payments, id., Doc. 79; he was warned in

January, April, and November 2001, that dismissal was a possible sanction for

failure to comply with the court’s order, id., Doc. 60, at 2, Doc. 79, at 2 and Vol.

II, Doc. 140, at 2; and he was on notice from the date of Defendants’ Motion to

Dismiss that dismissal could well be imminent if he did not immediately correct his

past failures. Yet even while the Motion to Dismiss was pending, Plaintiff

continued to authorize payments to the court that were less than he owed on

income currently deposited to his account and were significantly less than his past-

due amounts. And, as always, he continued to make discretionary purchases

far in excess of the amounts he remitted to the court. Clearly, Plaintiff

“thought clothing and sundries more valuable than continued pursuit of litigation.”

Lucien, 141 F.3d at 774.

We caution, however, that our review of Plaintiff’s egregious misconduct

should not be interpreted as suggesting that equally egregious misconduct is

necessary to justify dismissal with prejudice.

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IV. CONCLUSION

The judgment of the district court is AFFIRMED. Plaintiff is reminded that

he remains obligated to make partial payments to this court until the entire

appellate filing fee is paid in accordance with 28 U.S.C. § 1915(b). The mandate

shall issue forthwith. This appeal counts as a strike against Plaintiff under 28

U.S.C. § 1915(g).

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