931 F. 2d 55 - Penn v. Department of Corrections E
931 F2d 55 Penn v. Department of Corrections E
931 F.2d 55
Unpublished Disposition
Eric PENN, Plaintiff-Appellant,
v.
DEPARTMENT OF CORRECTIONS, Oscar Gulmatico, Charles E.
Thompson, Defendants-Appellees.
No. 91-6264.
United States Court of Appeals, Fourth Circuit.
Submitted April 8, 1991.
Decided April 24, 1991.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, District Judge. (CA-90-496-AM)
Eric Penn, appellant pro se.
E.D.Va.
REVERSED AND REMANDED.
Before MURNAGHAN, SPROUSE and NIEMEYER, Circuit Judges.
PER CURIAM:
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Eric Penn appeals the dismissal of his complaint for failure to pay a court-ordered partial filing fee. We reverse and remand.
The district court imposed a partial filing fee based on 15% of the aggregate amount deposited in appellant's account in the six months prior to submission of the complaint. However, this assessment 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. Geelhaar, 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 reverse the order of dismissal and remand with instructions to recalculate the partial filing fee 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.