John Robert Lay, Plaintiff-appellant, v. Woody Ban, Sheriff, Defendant-appellee, 823 F.2d 547 (4th Cir. 1987)

Annotate this Case
US Court of Appeals for the Fourth Circuit - 823 F.2d 547 (4th Cir. 1987) Submitted May 29, 1987. Decided June 26, 1987

John Robert Lay, appellant pro se.

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


John Robert Lay, a Virginia inmate, seeks to appeal from the district court's dismissal without prejudice of his civil rights complaint.

Lay instituted this action alleging violations of his constitutional rights. At the court's request, the Virginia Department of Corrections furnished a record of Lay's inmate trust fund. Pursuant to Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982), the court ordered Lay to pay a partial filing fee of $24.82 or present any special circumstances which would justify a different payment.

Lay filed objections to the payment of the partial filing fee. He asserted that he had spent monies in his trust fund account on legal copies and legal mail and on necessary personal hygiene items and, therefore, should be permitted to proceed in forma pauperis. The district court overruled Lay's objections and directed him to pay a partial filing fee within 21 days of the order's date. When Lay failed to remit the fee, the district court dismissed the action without prejudice.

As the fee assessment procedures followed by the district court comported with the system approved in Evans v. Croom, we deny leave to proceed on appeal in forma pauperis and dismiss the appeal. We note that, because the dismissal below was without prejudice, Lay 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.