UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RALPH MERCADO,

Plaintiff-Appellant,

No. 07-1112
v.	District of Colorado
R. WILEY; R. WOOD; M. BARBEE; R. BAUER; CHUCK TURNER; MARK MASER; John Doe #1; J. WADAS; H. TRAPP; R. CURRIN; RALPH SMITH; HARRELL WATTS; JOHN OR JANE DOE # 2,

Defendants-Appellees.	(D.C. No. 06-CV-02303-ZLW)

ORDER AND JUDGMENT*

Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.

Ralph Mercado, a prisoner at the United States Penitentiary in Florence, Colorado, appeals pro se the district court's decision to dismiss his claim without prejudice for failing to meet the fee requirements of 28 U.S.C. § 1915.

Mr. Mercado alleges that he was the victim of various civil rights violations at ADX Florence, in violation of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). He claims that the prison subjected him to harmful chemical vapors and failed to respond to his resulting medical complications, in violation of his constitutional rights.

Mr. Mercado first filed a claim in this case on November 15, 2005, which was dismissed without prejudice for failure to exhaust administrative remedies. Mercado v. Wiley, 200 F. App'x 765 (10th Cir. 2006). He re-filed the complaint one year later. At the same time, Mr. Mercado filed, and the district court granted, a motion to proceed without prepayment of costs, pursuant to 28 U.S.C. § 1915.

On November 16, 2006, the district court found Mr. Mercado capable of paying an initial $80 partial filing fee and ordered either payment or proof that the plaintiff had no assets and was unable to pay. Mr. Mercado filed a motion arguing that his proper payment amount should be only $13.28. On February 16, 2007, the district court dismissed the case without prejudice and dismissed a motion to appoint counsel as moot. Mr. Mercado now appeals the district court's decision.

Under 28 U.S.C. § 1915(b)(1), the initial partial filing fee for a prisoner proceeding in forma pauperis is 20% of the greater of the average monthly deposit to his account or the average monthly balance in his account for the six-month period preceding the filing of the complaint. In his initial IFP motion, Mr. Mercado submitted a certified statement of his prison trust account, the accuracy of which was accepted by the district court. According to that statement, Mr. Mercado's average monthly deposit was $66.67, and his average daily balance was $26.60.1 Mr. Mercado should have been assessed a fee of $13.33, which is twenty percent of the greater of those two numbers. The district instead imposed a filing fee of $80, presumably by calculating the amount based on the six-month deposit total of $400 instead of the monthly deposit total of $66.67.

In his petition and briefs to this Court, Mr. Mercado also argues that he was assessed an initial filing fee for his November 2005 complaint and should not have to pay it again, relying on Owens v. Keeling, 461 F.3d 763, 773 (6th Cir. 2006):

A prisoner who "refile[s]" a complaint alleging the same claims regarding prison conditions after it was initially dismissed without prejudice for failure to exhaust is not "instituting" a suit, but is merely following the particular procedure chosen by this court for curing the initial complaint's deficiency. Therefore, we hold that when a prisoner "refiles" a complaint raising the same prison-conditions claims as a complaint that was initially dismissed without prejudice for failure to exhaust under the PLRA, the prisoner need not pay an additional filing fee under 28 U.S.C. § 1914(a).

Id. at 773 (internal citations omitted). Because Mr. Mercado did not make this argument in district court, and because we must remand in consideration of the improperly calculated filing fees, we decline to examine the merits of this issue for the first time on appeal. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir. 1993).

Under the same logic, the Appellant also moves to waive his appellate filing fees, noting that he was assessed fees when appealing the earlier dismissal in the same case. Adhering to our established practice, we deny this motion.

The judgment of the United States District Court for the District of Colorado is REVERSED and REMANDED for further proceedings.

Entered for the Court,

Michael W. McConnell

Circuit Judge