Walker v. McGuire

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-60639 Summary Calendar

JAMES NORRIS WALKER,

Plaintiff-Appellant,

versus

JIMMY MCGUIRE; HERMAN COX,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:96-CV-90-Br-R - - - - - - - - - - April 8, 1997 Before SMITH, DUHE’ and BARKSDALE, Circuit Judges.

PER CURIAM:*

James Norris Walker, Mississippi state prisoner #76462, has

filed a motion to proceed in forma pauperis (IFP) on appeal. The

motion to proceed IFP is GRANTED. Although Walker is unable to

pay the initial financial filing fee, the agency having custody

of Walker is directed to forward payments from his account to the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-60639 - 2 -

clerk of the district court each time the amount in Walker’s

account exceeds $10 until the filing fee is paid.

Walker argues that the district court abused its discretion

in dismissing his complaint as frivolous because his counsel

conspired with state officials to deprive Walker of his

constitutional rights by testifying against Walker at his

criminal trial.

The district court dismissed the complaint as frivolous

pursuant to Heck v. Humphrey, 114 S. Ct. 2364 (1994) because it

determined that Walker’s allegations called into question the

validity of Walker’s conviction. We have reviewed the record and

have determined that Walker’s limited allegations do not

demonstrate whether Walker was convicted at the trial during

which counsel testified or, if so, whether Walker is presently

incarcerated as a result of such conviction.

Walker’s allegations that his counsel conspired with state

actors to deprive him of a constitutional right are not totally

baseless or delusional. The district court abused its discretion

in dismissing Walker’s complaint as frivolous at this stage of

the proceeding. See Denton v. Hernandez, 504 U.S. 25, 32-33

(1992). We intimate no view as to the ultimate merits of this

claim. We hold merely that on the record before us we cannot

conclude that this claim has no arguable basis either in law or

in fact. The district court’s judgment is VACATED and the case No. 96-60639 - 3 -

is REMANDED for further development of Walker’s claims consistent

with this opinion.

IFP GRANTED; VACATE AND REMAND.