FILED
United States Court of Appeals
Tenth Circuit
June 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOSE VEGA,
Plaintiff - Appellant,
v.
LAPPIN, Chf. Director of Bureau of
Prisons C.R.O.; NALLEY, Director of
Bureau of Prisons N.C.O.; WATTS,
Regional Counsel, Central Regional
Office; FIELDS, Deputy Director,
Regional Admin. Rem. Coord.,
N.C.O.; WILEY, Warden of ADX;
LEANN, Executive Assistant at ADX;
GARCIA, Admin. Rem. Coord. at
ADX; CASSAMEADOR, Captain at
ADX; ARROYO, Counselor at ADX;
FLUKE, Case Manager at ADX;
MACHAK, Teacher at ADX; SWIFT, No. 09-1019
Librarian at ADX; ARCO, (D.C. No. 08-cv-01571-ZLW)
Correctional Officer at ADX; ALLEN, (D. Colo.)
Correctional Officer at ADX;
BRUTUIS, Correctional Officer at
ADX; COLLINS, Correctional Officer
at ADX; DAVIS, Correctional Officer
at ADX; GARRISON, Correctional
Officer at ADX; HOLCOMB,
Correctional Officer at ADX;
JARBOE, Correctional Officer at
ADX; JETT, Correctional Officer at
ADX; LEE, Correctional Officer at
ADX; DANNY MCCOLLOUGH,
Correctional Officer at ADX;
METHERELL, Correctional Officer at
ADX; POTTER, Correctional Officer
at ADX; SIDESINGER, Correctional
Officer at ADX; SMITH, Correctional
Officer at ADX; VADONNA,
Correctional Officer at ADX;
BAILEY, Psychologist at ADX;
DUNLAP, Discip. Hearing Officer at
ADX; HAYGOOD, Counselor at
ADX; OTHERS UNKNOWN
EMPLOYED BY THE BOP; OTHERS
UNKNOWN EMPLOYED AT ADX,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.
Jose Vega (“Vega”), a federal prisoner appearing pro se, appeals the district
court’s dismissal, without prejudice, of his Bivens 1 action. The district court
dismissed the action on two grounds: that Vega’s amended complaint failed to
comply with the pleading requirements of Fed. R. Civ. P. 8; and that Vega, who
was proceeding in forma pauperis, failed to comply with the requirements of 28
U.S.C. § 1915(b)(2). The district court also denied Vega’s motion to proceed in
*
After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
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forma pauperis on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, 2 we
affirm the dismissal of the action, deny Vega’s motion to proceed in forma
pauperis, and dismiss his appeal.
In his July 22, 2008, order granting Vega leave to proceed in forma
pauperis before the district court, Magistrate Judge Boland ordered that Vega
comply with the requirements of 28 U.S.C. § 1915(b)(2) by making “monthly
payments of twenty percent . . . of the preceding month’s income credited to his
trust fund account.” (Magistrate’s Order at 3.) Judge Boland further ordered that
if Vega were unable to make the required monthly payment, he must “show cause
each month why he has no assets and no means by which to make the monthly
payment.” (Id.) In order thus to show cause, Vega was required to file, each
month, “a certified copy of his trust fund account statement.” (Id.) When he was
able to make payments, Vega was further “directed to make the necessary
arrangements to have each monthly payment identified by the civil action number
on [the court’s] order.” (Id.) Finally, the order warned that if Vega did not
2
“[T]hat a dismissal was without prejudice does not necessarily make it
non-final under section 1291.” Moya v. Schollenbarger, 465 F.3d 444, 448 (10th
Cir. 2006). “Rather, in this circuit, ‘whether an order of dismissal is appealable’
generally depends on ‘whether the district court dismissed the complaint or the
action. A dismissal of the complaint is ordinarily a non-final, non-appealable
order (since amendment would generally be available), while a dismissal of the
entire action is ordinarily final.’” Id. at 448-49 (quoting Mobley v. McCormick,
40 F.3d 337, 339 (10th Cir. 1994)). In this case, the district court dismissed “the
complaint, the amended complaint, and the action.” (Order of Dismissal at 6
(emphasis added).) Therefore, the dismissal is a “final decision[] of the district
court[]” that we may review under § 1291.
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comply with these § 1915(b)(2) requirements, his complaint would be “dismissed
without further notice.” (Id.)
In dismissing Vega’s Bivens action on the ground that he had failed to
comply with the magistrate judge’s July 22, 2008, order, and thus with the
requirements of § 1915(b)(2), the district court explained that Vega had failed not
only to make any monthly filing fee payments, but also to file certified copies of
his inmate trust fund statement for any monthly period after September 21, 2008.
Before this court, Vega argues that he did make certain required payments,
pointing to copies of his trust fund account statement on which he has
handwritten the words “PLRA PAYMENT” and “PLRA PAID” by several debt
encumbrance listings. (Aplt. Br. App. at 7-11.) These handwritten
notations–which Vega produces for the first time on appeal–simply do not suffice
to meet the district court’s direction that Vega “make the necessary arrangements
to have each monthly payment identified by the civil action number” of his
lawsuit. (Magistrate’s Order at 3.)
On the record before us, and for substantially the reasons articulated by the
district court, we conclude that Vega’s Bivens action was properly dismissed
because of his failure to comply with the magistrate judge’s order and the
requirements of § 1915(b)(2). Thus, we need not reach Vega’s challenge to the
dismissal on the ground that the amended complaint failed to comply with the
pleading requirements of Fed. R. Civ. P. 8.
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For the foregoing reasons, we affirm the district court’s order of dismissal,
deny Vega’s motion to proceed in forma pauperis, and dismiss the appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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