Notice: Fourth Circuit I.O.P. 36.6 States that Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit. John Clyde Foster, Petitioner-Appellant, v. Edward W. Murray; Clarence L. Jackson, Respondents-Appellees., 1 F.3d 1232 (4th Cir. 1993)

Docket Number: 93-6233

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Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CA-92-1441)

John Clyde Foster, Appellant Pro Se.

E.D.Va.

VACATED AND REMANDED.

Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.

OPINION

PER CURIAM:

John Clyde Foster filed suit under 28 U.S.C. Sec . 2254 (1988) and sought leave to proceed in forma pauperis. The district court assessed a filing fee in accordance with Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982), and gave Petitioner thirty days in which to pay the fee, or file written explanations of withdrawals from his prison account or of any special circumstances waiving the fee. The district court dismissed this action without prejudice after the thirty-day period passed for Petitioner's supposed failure to pay the fee.

We find that the district court abused its discretion by dismissing the action. Petitioner had apparently paid the assessed filing fee prior to the dismissal. The district court docket sheet shows that on February 19, 1993, Petitioner paid the fee and a receipt was issued. Although this date was outside the thirty-day period, Petitioner shows by attachments to his notice of appeal that the fee was dispatched from the prison prior to expiration of the thirty-day period.

We vacate the district court's order of dismissal, remand to the district court for further proceedings, and grant a certificate of probable cause to appeal. 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