                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-3503
                                    ___________

Vaughn Damon Wilson,                  *
                                      *
           Appellant,                 * Appeal from the United States
                                      * District Court for the
     v.                               * Western District of Arkansas.
                                      *
Alma City Court; State of Arkansas,   * [UNPUBLISHED]
                                      *
           Appellees.                 *
                                 ___________

                              Submitted: April 6, 2010
                                 Filed: April 12, 2010
                                  ___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

       Non-prisoner Vaughn Wilson appeals from an order of the District Court
dismissing his action under 28 U.S.C. § 1915(e)(2)(B) prior to service of process,
even though Wilson was not proceeding in forma pauperis (IFP). Wilson has also
filed a motion for a restraining order.

       Upon careful de novo review, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir.
2000) (per curiam), we find that the District Court erred in dismissing the complaint
under § 1915 because that statute applies only to IFP cases, see 28 U.S.C. § 1915
(limiting application of provision to IFP proceedings); see also Porter v. Fox, 99 F.3d
271, 273 n.1 (8th Cir. 1996) (per curiam) (observing that procedures allowing
dismissal for failure to state a claim under the Prison Litigation Reform Act (PLRA)
amendments to § 1915 do not apply to a plaintiff who was neither proceeding IFP nor
in prison). In addition, because the period for serving process upon the defendants
had not yet expired, dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure was premature. Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991)
(holding that a district court may dismiss a complaint under Rule 12(b)(6) sua sponte
as long as the dismissal does not precede service of process).

       Accordingly, we vacate the District Court’s order of dismissal and remand the
case for further proceedings.1 We also deny Wilson’s pending motion.
                       ______________________________




      1
       We emphasize that our remand should not be construed as questioning the
merits of the District Court's Rule 12(b)(6) dismissal, only the timing of that
dismissal.

                                         -2-
