Daniel Dale Zerbe, Plaintiff-appellant, v. City of Yorktown, County of York; P.s. Williams, Sheriff;sherry Leonard, Jail Administrator, Defendants-appellees, 814 F.2d 655 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 814 F.2d 655 (4th Cir. 1987) Submitted Feb. 18, 1987. Decided March 20, 1987

E.D. Va.


Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. MacKenzie, Senior District Judge. (C/A No. MISC-86-296-N)

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

Daniel Dale Zerbe, appellant pro se.


Daniel Dale Zerbe, a Virginia inmate, appeals the order of the district court dismissing his claim under 42 U.S.C. § 1983 for failure to pay a partial filing fee.

The district court determined that, during the six months prior to the filing of his claim, Zerbe received income in the sum of $512.69. Accordingly, the district court directed Zerbe to submit the full filing fee of $60 or to show special circumstances which would justify a different payment. After reviewing Zerbe's objections to the payment of the full fee, the district court again ordered Zerbe to submit the full filing fee. Upon Zerbe's failure to pay the $60.00, the district court dismissed the case.

As the 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. We note that, because the dismissal below was without prejudice, Zerbe 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.