Ronald Jerry Sawyer, Plaintiff-appellant, v. Edward Murray; David A. Garraghty; Kenneth L. Osborne;gladys W. Collette, Defendants-appellees.ronald Jerry Sawyer, Plaintiff-appellant, v. Dr. Frye, Defendant-appellee, 948 F.2d 1282 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 948 F.2d 1282 (4th Cir. 1991) Submitted Sept. 10, 1991. Decided Dec. 3, 1991

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-90-1376-AM, CA-90-1123-AM)

Ronald Jerry Sawyer, appellant pro se.

E.D. Va.

REVERSED AND REMANDED.

Before DONALD RUSSELL, SPROUSE and NIEMEYER, Circuit Judges.

OPINION

PER CURIAM:


Ronald Jerry Sawyer appeals the dismissal of two of his complaints for failure to pay a court-ordered partial filing fee. We reverse and remand.

The district court imposed a partial filing fee based on fifteen percent of the aggregate amount deposited in appellant's account in the six months prior to submission of the two complaints. However, these separate assessments 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. Geelharr, 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 grant leave to proceed in forma pauperis in case No. 91-7124 and reverse the orders of dismissal and remand with instructions to recalculate the partial filing fees 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.