garland-lee-mitchell-v-buckhead-franchising-incorporated-aka-richmond , 42 F.3d 1386 ( 1994 )

42 F.3d 1386

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Garland Lee MITCHELL, Plaintiff Appellant,
v.
BUCKHEAD FRANCHISING, INCORPORATED, a/k/a Richmond Host,
Limited; Equal Employment Opportunity Commission; Mr.
Patal; Martha Wood; Wood's Graphic Art Company,
Incorporated; The Freedom House; City of Richmond, City of
Richmond Street Team; Nancy Gowan, Defendants Appellees.

No. 94-1419.

United States Court of Appeals, Fourth Circuit.

Submitted November 17, 1994.
Decided December 5, 1994.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (MC-94-2-01, MC-94-2-02, MC-94-2-03, MC-94-2-04, MC-94-2-05, MC-94-2-06)

Garland Lee Mitchell, appellant pro se.

E.D.Va.

VACATED AND REMANDED.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM

1

Appellant appeals the district court's order denying his petitions to proceed in forma pauperis in six actions. We vacate and remand with instructions.

2

Leave to proceed in forma pauperis should be freely granted under 28 U.S.C. Sec. 1915(a) (1988). Cruz v. Hauck, 404 U.S. 59 (1971) (Douglas, J., concurring). The proper procedure is for the district court to consider only petitioner's economic status in making the decision whether to file a pro se complaint in forma pauperis. Boyce v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir.1979). Once filed, the complaint may be dismissed under 28 U.S.C. Sec. 1915(d) (1988) if frivolous or malicious.

3

Here, although the district court found that Appellant satisfied the poverty requirement to proceed in forma pauperis, the court denied the petitions based upon consideration of the merits.* We find that the district court abused its discretion in so doing. Accordingly, we vacate the district court's order and remand the case. Upon remand, the district court should grant Appellant's petitions to proceed in forma pauperis and file the complaints. Once the district court has docketed the complaints, it has broad discretion to dismiss them for frivolity under Sec. 1915(d).

4

We deny as moot Appellant's motion to expedite his appeal and we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

VACATED AND REMANDED

*

Since the court did not file Appellant's complaints, they are not contained in the record. Therefore, we are not able to review the court's determination that the complaints are frivolous based on the current record