Fred E. Christian, Plaintiff-appellant, v. Us Marshal's Service, and Three Unknown Us Marshals,defendants-appellees, 943 F.2d 48 (4th Cir. 1991)

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U.S. Court of Appeals for the Fourth Circuit - 943 F.2d 48 (4th Cir. 1991) Submitted Aug. 26, 1991. Decided Sept. 10, 1991

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. MacKenzie, Senior District Judge. (MISC-90-226-N)

Fred E. Christian, appellant pro se.

E.D. Va.

REVERSED AND REMANDED.

Before WILKINSON and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:


Fred E. Christian appeals the dismissal of his complaint for failure to pay a court-ordered partial filing fee. We grant leave to proceed in forma pauperis, reverse, and remand.

The district court imposed a partial filing fee based on 15% of the aggregate amount deposited in appellant's account in the six months prior to submission of the complaint. However, 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" in the relevant period. See Ortega v. Geelhaar, 914 F.2d 495, 498 (4th Cir. 1990) (district court must abide by local rules adopted by court). The later amendment of Rule 28(C) does not cure this violation--the rule in effect on the day the complaint was submitted must be applied.

Accordingly, we reverse the order of dismissal and remand with instructions to recalculate the partial filing fee in accordance with the pre-amendment version of Local Rule 28(C). We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process.

REVERSED AND REMANDED.