Henry Lee James, Plaintiff-appellant, v. Chesapeake City Jail, Defendant-appellee, 808 F.2d 835 (4th Cir. 1986)

Henry L. James appeals the district court order dismissing his 42 U.S.C. § 1983 complaint without prejudice for failure to pay the assessed partial fee. By order entered July 24, 1986, the district court ordered James to pay a partial filing fee of $40.70 within twenty days of the order, or to show that special circumstances justified a special payment or no payment. James responded with his objection to the fee on the ground that he must support his family. By order entered August 6, 1986, the district court overruled the objection and ordered James to pay $40.70 within twenty days of the order. James again responded with his objection to the fee. By order entered September 4, 1986, the district court reduced the partial fee to $32.70, due to a miscalculation, overruled the objections and ordered James to pay $32.70 within twenty days. The district court advised James that failure to comply with the order would result in dismissal of the action. James did not pay the partial fee, and by order entered October 3, 1986, the district court dismissed the action without prejudice.

As the fee assessment procedure followed by the district court comported with the system approved in Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982), we deny leave to proceed in forma pauperis and dismiss the appeal. Because the dismissal below was without prejudice, James may refile his complaint upon payment of any new fee imposed. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

DISMISSED.