Baldauf v. Garoutte
Opinion of the Court
ORDER AND JUDGMENT
This is an appeal after remand of plaintiff-appellant Leonard Baldaufs 42 U.S.C. § 1983 civil rights case. The district court dismissed the § 1983 action because of
As mentioned above, Baldauf argues that CDOC failed to make payments on his behalf. That argument is foreclosed by Cosby, 351 F.3d at 1332 (refusing to excuse prisoner’s failure to pay on this ground because “it was still Plaintiffs obligation to notice this lapse and not spend the money until the required payments were made to the court”). Baldaufs argument that since the court’s last fee-payment order he has complied with § 1915 and, implicitly, should therefore be excused from prior payment defaults is similarly unavailing. The last order issued by the district court was not the first time Baldauf had been placed on notice that failure to make payment may result in dismissal without further notice. See Recommendation of United States Magistrate Judge, R. Vol. II, doc. 226 at 16.
Because we affirm the district court’s dismissal of this action for failure to comply with 28 U.S.C. § 1915, it is unnecessary for us to reach the other issues Baldauf raises on appeal. Baldaufs motion to proceed on appeal without prepayment of fees is GRANTED. Baldauf is reminded that he remains obligated to make partial payments to this court until the entire appellate filing fee is paid in accordance with § 1915(b). The mandate shall issue forthwith. This appeal counts as a strike against Plaintiff under 28 U.S.C. § 1915(g).
The judgment of the district court is AFFIRMED.
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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
Concurring Opinion
I concur in the judgment but respectfully dissent to the grant of IFP status.
Reference
- Full Case Name
- Leonard BALDAUF, Plaintiff-Appellant, v. Frances GAROUTTE; Eugene E. Atherton; John Stoner; Steve Schuh; Cathy Slack; Vicky Riddle; Mike Arellano; Ed Gillespie; Donald McCall; Gloria Breidenbach; Gary Pittman; Mike Webb; Gerald Knapic; Joseph William Sims; Daniel Gallagher; Dave Linam; Karry Paine; William Beard; James Halstead; H. Bennett; Charles Shannon; Tom Martin; Elias Rincon; Ron Leyba; John Hadley; Robert Stockman; Gabe Hernandez; Sean Pruitt; Pam King; Matt Goodwin; Jerry Awmiller; Rhonda Coretti; Teresa Reynolds; Dineen Crandall; Richard Flores; Wess Lehman; Julian Padilla; Chris Starcer; Gale Graham; Christian Snelson; David Schlotterer; Wermer; Scavarda; Lusk; Bell; Carey; Declusin; Cortez; E. Miller; Joe Ortiz; Larry Reid; Mora; Richard Wright; Dan Foster; Thomas; Avant; James Michaud; Don Lawson; Zander; Owens; Philips; Bob Flores; Amy Hough; Brad Rockwell; Cathy Holst, Defendants-Appellees
- Cited By
- 2 cases
- Status
- Unpublished