UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JERRY L. GENT,
Plaintiff-Appellant,
v.
No. 95-3006
THE DEPARTMENT FOR RIGHTS OF
VIRGINIANS WITH DISABILITIES,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(MISC-95-14)
Submitted: April 9, 1996
Decided: April 22, 1996
Before HAMILTON and MOTZ, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Jerry L. Gent, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jerry L. Gent appeals the district court's order denying his petition
to proceed in forma pauperis. We vacate and remand with instruc-
tions.
Leave to proceed in forma pauperis should be freely granted under
28 U.S.C. § 1915(a) (1988). Cruz v. Hauck , 404 U.S. 59 (1971)
(Douglas, J., concurring). The proper procedure is for the district
court to consider only a petitioner's economic status in making the
decision whether to file a pro se complaint in forma pauperis. Boyce
v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir. 1979). Once filed, the
complaint may be dismissed under 28 U.S.C. § 1915(d) (1988), if the
complaint is patently frivolous or malicious.
Here, the district court made no explicit findings with regard to
whether Gent satisfied the poverty requirement to proceed in forma
pauperis and denied the petition based upon consideration of the mer-
its of Gent's complaint. Upon review, however, Gent's declaration in
support of his petition to proceed in forma pauperis would support a
finding of indigency because it disclosed that he was not employed,
received only $552 per month from Social Security Disability Insur-
ance, and owned no cash, stocks, or bonds. We are not able to review
the court's determination that the complaint was frivolous based on
the current record because the district court did not file Gent's com-
plaint. Therefore, we find that the district court abused its discretion.
Accordingly, we grant leave to proceed in forma pauperis on
appeal and vacate the district court's order. Upon remand, the district
court should grant Gent's petition to proceed in forma pauperis and
file the complaint. Once the district court has docketed the complaint,
it has broad discretion to dismiss it for frivolity under § 1915(d).
Adams v. Rice, 40 F.3d 72 (4th Cir. 1994), cert. denied, ___ U.S. ___,
63 U.S.L.W. 3690 (U.S. Mar. 20, 1995) (No. 94-7733). We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
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