IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60639
Summary Calendar
JAMES NORRIS WALKER,
Plaintiff-Appellant,
versus
JIMMY MCGUIRE;
HERMAN COX,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:96-CV-90-Br-R
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April 8, 1997
Before SMITH, DUHE’ and BARKSDALE, Circuit Judges.
PER CURIAM:*
James Norris Walker, Mississippi state prisoner #76462, has
filed a motion to proceed in forma pauperis (IFP) on appeal. The
motion to proceed IFP is GRANTED. Although Walker is unable to
pay the initial financial filing fee, the agency having custody
of Walker is directed to forward payments from his account to the
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 96-60639
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clerk of the district court each time the amount in Walker’s
account exceeds $10 until the filing fee is paid.
Walker argues that the district court abused its discretion
in dismissing his complaint as frivolous because his counsel
conspired with state officials to deprive Walker of his
constitutional rights by testifying against Walker at his
criminal trial.
The district court dismissed the complaint as frivolous
pursuant to Heck v. Humphrey, 114 S. Ct. 2364 (1994) because it
determined that Walker’s allegations called into question the
validity of Walker’s conviction. We have reviewed the record and
have determined that Walker’s limited allegations do not
demonstrate whether Walker was convicted at the trial during
which counsel testified or, if so, whether Walker is presently
incarcerated as a result of such conviction.
Walker’s allegations that his counsel conspired with state
actors to deprive him of a constitutional right are not totally
baseless or delusional. The district court abused its discretion
in dismissing Walker’s complaint as frivolous at this stage of
the proceeding. See Denton v. Hernandez, 504 U.S. 25, 32-33
(1992). We intimate no view as to the ultimate merits of this
claim. We hold merely that on the record before us we cannot
conclude that this claim has no arguable basis either in law or
in fact. The district court’s judgment is VACATED and the case
No. 96-60639
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is REMANDED for further development of Walker’s claims consistent
with this opinion.
IFP GRANTED; VACATE AND REMAND.