Jeffery T. Washington v. Sergeant Spardley, Wilbert J. Gilchrist

935 F.2d 1289, 1991 U.S. App. LEXIS 19636, 1991 WL 106139

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 20, 1991
• Docket: 91-7559
• Status: Unpublished

Opinion

935 F.2d 1289
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Jeffery T. WASHINGTON, Plaintiff-Appellant,
v.
Sergeant SPARDLEY, Wilbert J. Gilchrist, Defendants-Appellees.

No. 91-7559.

United States Court of Appeals, Fourth Circuit.

Submitted June 3, 1991.
Decided June 20, 1991.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (CA-90-617-AM)

Jeffery T. Washington, appellant pro se.

E.D.Va.

AFFIRMED.

Before WIDENER, MURNAGHAN and NIEMEYER, Circuit Judges.

PER CURIAM:

Jeffery T. Washington appeals the dismissal of his complaint for failure to pay a court-ordered partial filing fee. We grant leave to proceed in forma pauperis and affirm the dismissal of the complaint on grounds other than those relied upon by the district court.

The district court imposed a partial filing fee based on 15% of the aggregate of the beginning balance plus the amount deposited in appellant's account in the six months prior to submission of the complaint. 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" during the relevant period.

However, Washington's complaint, that prison guards negligently broke his television set when they moved his uncooperative cellmate, is frivolous. See Daniels v. Williams, 474 U.S. 327 (1986) (negligent deprivation not actionable as a due process violation); Phelps v. Anderson, 700 F.2d 147, 149 n. 3 (4th Cir.1983) (Virginia provides adequate post deprivation remedy). Because Washington's claim lacks an arguable basis either in law or in fact, we affirm the dismissal of his complaint under 28 U.S.C. Sec. 1915(d). See Neitzke v. Williams, 490 U.S. 319 (1989).

We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process.