799 F. 2d 751 - Joseph Marion Head, Jr. v. United States of America

(Joseph Marion Head, Appellant Pro Se.)

North Carolina inmate Joseph Marion Head, Jr., filed this action in the federal district court seeking relief under 42 U.S.C. Sec. 1983. Although the district court granted leave to proceed in forma pauperis, it noted that the complaint was repletitive of previous lawsuits and furnished no basis for relief. The court concluded that the action was "frivolous," as defined in 28 U.S.C. Sec. 1915(d), and dismissed.

Commencement of a civil suit without prepayment of costs may be allowed by a district court if a litigant makes affidavit that he is unable to pay the costs or give security therefor. 28 U.S.C. Sec. 1915(a). After filing in forma pauperis is allowed, however, the court may dismiss the case "if satisfied that the action is frivolous or malicious." 28 U.S.C. Sec. 1915(d). In other words, the district court should order the case docketed based on an inmate's economic status, then determine whether it should be dismissed under Sec. 1915(d). Boyce v. Alizaduh, 595 F.2d (4th Cir. 1979).

In the instant case, dismissal was proper under Sec. 1915(d) on the grounds that the action was frivolous. Finding as we do, that the district court acted within its discretion, we affirm the judgment of dismissal. We dispense with oral argument as the record and other materials before the Court indicate it would not significantly aid the decisional process.