Lewis Devorne Greene, Plaintiff-appellant, v. James H. Dunning, Sheriff, Alexandria City; John L. Griggs,captain Security Jail; M. Kimble, Deputy; O.santiago, Deputy, Defendants-appellees, 52 F.3d 321 (4th Cir. 1995)Annotate this Case
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis III, District Judge. (CA-94-642-AM)
Lewis DeVorne Greene, Appellant Pro Se.
VACATED AND REMANDED.
Before RUSSELL and WILLIAMS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
Lewis DeVorne Greene appeals from the district court's order dismissing without prejudice his complaint filed pursuant to 42 U.S.C. § 1983 (1988), for failure to pay the assessed partial filing fee.1 The district court properly stated that it may require a prisoner to pay a partial filing fee in an amount equal to fifteen percent of the funds deposited in the inmate's trust account during the six months preceding submission of the complaint. Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982). However, the district court assessed a fee of $61.26, an amount that exceeds fifteen percent of the $208.76 deposited in the six months preceding the submission of the complaint. We note that the two-year statute of limitations in Greene's section 1983 action will expire soon. See Va.Code Ann. Sec. 8.01-243(A) (Michie 1992). Therefore, although we grant Greene leave to proceed in forma pauperis in this appeal, we vacate the district court's order, and remand for assessment of a partial filing fee in accordance with Evans v. Croom and E.D. Va. R. 28(C) (4).2 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
VACATED AND REMANDED
Generally, dismissals without prejudice are not appealable. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). We find that the district court's order is a final, appealable order because the perceived defect in Greene's complaint--failure to pay the assessed partial filing fee--must be cured by something more than an amendment to the complaint. See id. at 1066-67
Under its local rule, we note that the district court may assess a partial filing fee not in excess of 20% of the aggregate deposits in an inmate's prison account during the six months preceding the submission of his complaint. E.D. Va. R. 28(C) (4)