Anthony Crowell v. David A. Garraghty, Dr. Binford

946 F.2d 884, 1991 U.S. App. LEXIS 28824, 1991 WL 195746

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 3, 1991
• Docket: 91-6030
• Status: Unpublished

Opinion

946 F.2d 884

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Anthony CROWELL, Plaintiff-Appellant,
v.
David A. GARRAGHTY, Dr. Binford, Defendants-Appellees.

No. 91-6030.

United States Court of Appeals, Fourth Circuit.

Submitted May 14, 1991.
Decided Oct. 3, 1991.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. MacKenzie, Senior District Judge. (CA-90-1452-N)

Anthony Crowell, appellant pro se.

E.D.Va.

REVERSED AND REMANDED.

Before WIDENER and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

Anthony Crowell appeals the dismissal of his complaint for failure to pay a court-ordered partial filing fee. We reverse and remand.

The district court imposed a partial filing fee based on 15% of the aggregate amount deposited in appellant's account in the six months prior to submission of the complaint. However, this assessment violated Local Rule 28(C) for the Eastern District of Virginia, which only permitted a partial filing fee based on the "average amount on deposit" in the relevant period. See Ortega v. Geelhaar, 914 F.2d 495, 498 (4th Cir.1990) (district court must abide by local rules adopted by court). The later amendment of Rule 28(C) does not cure this violation--the rule in effect on the day the complaint was submitted must be applied.

Accordingly, we reverse the order of dismissal and remand with instructions to recalculate the partial filing fee in accordance with the pre-amendment version of Local Rule 28(C). We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process.