FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               November 20, 2014
                               TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 CRAIG ROBLEDO-VALDEZ,

             Plaintiff - Appellant,

 v.                                                    No. 14-1201
                                          (D.C. No. 1:12-CV-01833-WYD-KLM)
 DICK SMELSER; RAY ROMERO;                              (D. Colo.)
 ALBERT MARTINEZ; TIANA
 LUCERO; ELIJAH RIDGEWELL;
 JUDY BREZINDINE; OFFICER
 RAMOS; OFFICER SANTISTEVAN;
 RACHEL INFANTE; COUNSELOR
 GONZALES; SERGEANT
 MONREAL; SERGEANT ACKER;
 SHANE KOLANDER; SERGEANT
 PELSTER; TONY CAROCHI;
 DANIEL CHAVEZ; C. REYES; D.
 CORTESE; 2 UNNAMED PPMU
 OFFICERS; and RANDY
 MARTINEZ,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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. 32.1.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      Plaintiff and Appellant, Craig Robledo-Valdez, proceeding pro se, appeals

the dismissal without prejudice of his 42 U.S.C. § 1983 complaint, which alleged

some thirteen claims against twenty defendants. These claims related to a variety

of events that occurred during his state criminal trial and his subsequent

incarceration with the Colorado Department of Corrections, including events

surrounding disciplinary action taken against Mr. Robledo-Valdez. For the

following reasons, we affirm the dismissal of this case.

      Mr. Robledo-Valdez filed his complaint, subsequently amended, on July 12,

2012. The matter was referred to a magistrate judge. On July 13, 2012, the

magistrate judge entered an Order granting leave to Mr. Robledo-Valdez to

proceed in forma pauperis (“ifp”) pursuant to 28 U.S.C. § 1915, which stated that

“[P]laintiff is able to pay an initial partial filing fee of $16.00” and ordered Mr.

Robledo-Valdez “to pay the full amount of the required $350.00 filing fee

pursuant to § 1915 regardless of the outcome of this action.” Order at 1; R. Vol.

1 at 31. The Order further required Mr. Robledo-Valdez to “make monthly

payments of twenty percent (20%) of the preceding month’s income credited to

his trust fund account or show cause each month as directed above why he has no

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assets and no means by which to make monthly payment.” 

R. Vol. 1 at

32. Finally, the Order explicitly stated that “if . . . the plaintiff fails to have the

designated initial partial filing fee or monthly payments sent to the clerk of the

court or to show cause as directed above . . . , the Prisoner Complaint will be

dismissed without further notice.” 

R. Vol. 1 at 32-33.

       On October 3, 2012, the magistrate judge entered an Order to Show Cause

regarding Mr. Robledo-Valdez’s failure to make his partial filing fee payments as

required by the Order granting him ifp status. As stated in the Order to Show

Cause:

       Pursuant to § 1915(b)(1), Mr. Robledo-Valdez was directed to pay
       the entire $350.00 filing fee and he was ordered to pay an initial
       partial filing fee of $16.00. Pursuant to § 1915(b)(2), Mr. Robledo-
       Valdez was ordered to make monthly installment payments until the
       $350.00 filing fee was paid in full. Mr. Robledo-Valdez was
       instructed either to make the required monthly payments or to show
       cause each month why he has no assets and no means by which to
       make a monthly payment. In order to show cause, Mr. Robledo-
       Valdez was directed to file a current certified copy of his inmate trust
       fund account statement. Mr. Robledo-Valdez was warned that a
       failure to comply with the requirements of § 1915(b)(2) could result
       in the dismissal of this action without further notice.

Order to Show Cause at 1-2; R. Vol. 1 at 108-09. On October 31, 2012, the Order

to Show Case was discharged after the court received a $50.00 partial payment

from Mr. Robledo-Valdez, a letter from him explaining why he had not made the

monthly filing fee payments as required, and a certified copy of his inmate trust




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account statement. 1 Ultimately, a total of $159.00 was paid on Mr. Robledo-

Valdez’s behalf. As the magistrate judge noted, however, Mr. Robledo-Valdez

failed to complete his payment obligations; he has not submitted any partial filing

fee payment since February 22, 2013. A review of the docket indicates that, since

February 22, 2013, Mr. Robledo-Valdez has also not submitted any evidence to

the court regarding his inability to make partial filing fee payments.

      On February 20, 2013, the Defendants filed a Joint Opposed Motion to

Dismiss or, in the Alternative, Motion for Order to Show Cause, seeking either

dismissal of the case or an order to show cause based on Mr. Robledo-Valdez’s

failure to pay his partial filing fees. On March 4, Mr. Robledo-Valdez filed a

response.

      On May 31, 2013, Mr. Robledo-Valdez filed a Notice of Change of

Address, informing the court of his new address in San Antonio, Texas. On June

17, 2013, the Clerk of the district court received a letter from Mr. Robledo-

Valdez asking for copies of documents and stating that his “mother pays $25 a

month toward this case.” Letter to Clerk dated June 17, 2013.

      In response to the Defendants’ Motion to Dismiss, the magistrate judge

entered Orders granting, in part, the Motion to Dismiss, and ordering Mr.

Robledo-Valdez to show cause why the action should not be dismissed pursuant

      1
       Mr. Robledo-Valdez’s letter explained that he thought that 20% of his
monthly prison account income would be sent to the court and that he had asked
his mother to make payments on his behalf.

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to Fed. R. Civ. P. 41(b) for failure to comply with the court’s orders and

applicable rules. One Order to Show Cause concerned dismissal of the action

against various defendants who remained unserved, and the other related to Mr.

Robledo-Valdez’s failure to make requisite fee payments. See Order dated June

21, 2013 (“Service OSC”) and Order July 1, 2013 (“Fees OSC”). Mr. Robledo-

Valdez was given until July 19, 2013, to respond.

      The magistrate judge discussed each of the Orders, noting that, with respect

to the Service OSC, Mr. Robledo-Valdez had not responded. The court then

stated that it “may extend the time for a plaintiff to serve a defendant even

without a showing of good cause, . . . [but] the Court is not inclined to do so

here.” Order & Recommendation at 8; R. Vol. 1 at 258. As it further noted,

“[t]he case against the Unserved Defendants has been pending since July 2012.

Plaintiff failed to effect service of the Unserved Defendants within one hundred

and twenty days of their inclusion in this case, failed to provide sufficient contact

information for the Court to do so, and failed to provide good cause for the Court

to find that an opportunity exists to cure the service deficiency in the future.” 

R. Vol. 1 at 258-59. Furthermore, Mr. Robledo-Valdez “was warned in

advance that the penalty for failing to serve or for failing to provide good cause

for the service delay would be dismissal of the Unserved Defendant[s].” 

R. Vol. 1 at 259.




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      With regard to the Fees OSC, the court considered the various factors it

must consider before dismissing a case as a sanction for failing to make fee

payments as directed by court orders. The magistrate judge recommended

dismissal of the case. The district court then reviewed the magistrate judge’s

recommendation, as well as Mr. Robledo-Valdez’s objections, and concluded to

dismiss the case without prejudice, pursuant to Fed. R. Civ. P. 41(b):

             I acknowledge the difficulties that a prisoner faces while
      incarcerated in pursuing a lawsuit. Nonetheless, this does not
      provide a basis to disregard or fail to comply with Court’s Orders,
      the Federal Rules of Civil Procedure and the Local Rules of this
      Court, and the requirements of suit, including filing fees. Magistrate
      Judge Mix provides detailed bases in law and in fact for her ruling
      and recommendation to dismiss the case as a sanction. While
      Plaintiff makes excuses and attempts to shift the blame to the
      Defendants, the fact remains that he has set forth no basis as to why
      the Order and Recommendation are wrongly decided or should be
      overruled. The proper factors were considered under Ehrenhaus v.
      Reynolds, 

, 918 (10th Cir. 1992), and I agree with
      Magistrate Judge Mix that dismissal is appropriate under Fed. R. Civ.
      P. 41(b) based on Plaintiff’s failure to comply with Court Orders and
      obligations under law.

Order at 5; R. Vol. 1 at 288. The district court accordingly dismissed the case

without prejudice. Mr. Robledo-Valdez filed a motion for reconsideration, which

the court also denied. This appeal followed.

      We review the dismissal of an action under Rule 41(b) for an abuse of

discretion. Nasious v. Two Unknown B.I.C.E. Agents, 

, 1161 (10th

Cir. 2007); Cosby v. Meadors, 

, 1326 (10th Cir. 2003); Olsen v.

Mapes, 

, 1204 (10th Cir. 2003). Under the abuse of discretion

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standard, we will not reverse the lower court’s decision unless we conclude the

court made “a clear error of judgment or exceed[ed] the bounds of permissible

choice in the circumstances.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co.,

, 1143 (10th Cir. 2007).

      As the above recitation makes clear, the district court did not abuse its

discretion in dismissing Mr. Robledo-Valdez’s case. Mr. Robledo-Valdez

repeatedly failed to comply with court orders, despite many opportunities to do

so. But before imposing dismissal as a sanction, the district court considered

whether certain factors supported dismissal. Those factors, as set forth in

Ehrenhaus, included (1) the degree of actual prejudice to the defendant; (2) the

amount of interference with the judicial process; (3) the culpability of the litigant;

(4) whether the court warned the party in advance that dismissal of the action

would be a likely sanction for noncompliance; and (5) the efficacy of lesser

sanctions. 

; see also Mobley v. McCormick, 

, 341 (10th Cir. 1994). We note that, when the dismissal is without prejudice,

as in this case, consideration of the Ehrenhaus factors is not required.

AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., 

, 1236

(10th Cir. 2009); 

(“[A] district court may, without

abusing its discretion, enter [a Rule 41(b) dismissal without prejudice] . . .

without attention to any particular procedures.”). The court nonetheless

considered those factors.

                                          -7-
      Mr. Robledo-Valdez argues in his appellate brief that the court erred in

dismissing his case, but he utterly fails to convince us that the court abused its

discretion in doing so. He provides no persuasive explanation, other than

continually placing the blame on others, for his repeated failure to follow the

court’s orders. For those reasons, we conclude that this appeal is frivolous.

      At the time Mr. Robledo-Valdez filed his notice of appeal in this case, he

was still incarcerated. He has since been released. Mr. Robledo-Valdez had filed

a motion in Appeal No. 14-1067 (a related appeal) asking for leave to proceed on

appeal in forma pauperis (“ifp”) under the Prison Litigation Reform Act

(“PLRA”), 28 U.S.C. § 1915. He has filed a motion asking this court to use that

same motion in this appeal and in a companion appeal, No. 14-1200. With the

understanding that he would be assessed two additional filing fees, the Clerk’s

office granted the motion and refiled the § 1915 motion from Appeal No. 14-1067

in this case (14-1201) and its companion, 14-1200. See Order (June 4, 2014).

      As stated, we conclude that this appeal is frivolous. Consequently, we

deny Mr. Robledo-Valdez’s request to proceed on appeal ifp. Furthermore,

because he was incarcerated when he filed his notice of appeal, the PLRA applied

at that point. Brown v. Eppler, 

(10th Cir. 2013); see also Jones v.

Kansas, 572 Fed. Appx. 648, 649 (10th Cir. 2014) (unpublished) (“Although

[defendant] is no longer in prison, he was when he initiated this appeal and so the

provisions of the [PLRA] apply.”). He “should have paid an initial partial

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appellate filing fee calculated according to the formula set forth in 28 U.S.C.

§ 1915(b)(1).” 

. “While he was incarcerated, he should

have also paid additional amounts calculated pursuant to § 1915(b)(2) on the basis

of his monthly income from the time he filed his notice of appeal to the time of

his release from incarceration.” 

conclude this appeal is frivolous,

however, Mr. Robledo-Valdez is obligated to pay the filing fee in full at this time.

      For the foregoing reasons, we AFFIRM the dismissal of this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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