ALD-158                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 09-1016


                                 LAURENCE FISHER,
                                                Appellant

                                            v.

      COLONEL JEFFREY MILLER; Lt. Colonel JOHN R. BROWN; Lieutenant
      NICHOLAS G. SAITES; Captain LISA S. CHRISTIE; Captain RODNEY J
                 PATTERSON; Lieutenant JAMES J CAREY



                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 08-cv-02114)
                     District Judge: Honorable A. Richard Caputo


                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 25, 2010

               Before: SLOVITER, AMBRO and SMITH, Circuit Judges

                             (Opinion filed: April 13, 2010)


                                        OPINION


PER CURIAM

      In November 2008, Laurence Fisher filed a pro se complaint pursuant to 42 U.S.C.

§ 1983 and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq. He alleged that he was discriminated against on the basis of his gender when he was

terminated from his job as a Pennsylvania State Police Corporal. He also raised claims

related to a subsequent labor arbitration proceeding, asserting that his counsel provided

ineffective assistance under the Sixth Amendment, that his Fourteenth Amendment due

process rights were violated, and that the arbitrator discriminated against him because of

his sex.1 Fisher also submitted a motion to proceed in forma pauperis (“IFP”).

       Without considering Fisher’s financial status, the District Court denied the IFP

motion on the basis that he did not state a claim upon which relief may be granted.

Specifically, the District Court determined that Fisher’s claims were barred under the

Rooker-Feldman doctrine, that the Sixth Amendment does not apply to civil actions, that

the arbitration procedures available to Fisher satisfied due process, and that Title VII did

not apply to the arbitration proceedings because they did not constitute an act of an

employer. The District Court concluded, “[b]ecause Plaintiff alleges only claims that this

Court does not have jurisdiction to entertain or that fail to state a claim on which relief

may be granted, the Court denies his application to proceed IFP and dismisses his

complaint.” Fisher appealed.

       We review the denial of a motion to proceed in forma pauperis for abuse of

discretion. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 337 (1948);

Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983). In this Circuit, leave to proceed


   1
     Following the arbitration proceedings, Fisher alleged that he unsuccessfully pursued
relief in the Pennsylvania courts.

                                              2
IFP is based solely on a showing of indigence. See Deutsch v. United States, 67 F.3d

1080, 1084 n.5 (3d Cir. 1995). If the District Court grants the IFP motion, it files the

complaint, see Oatess v. Sobolevitch, 914 F.2d 428, 429 n.1 (3d Cir. 1990), and screens it

before service pursuant to 28 U.S.C. § 1915(e)(2)(B). The District Court may dismiss the

complaint if, inter alia, it fails to state a claim upon which relief can be granted. See 28

U.S.C. § 1915(e)(2)(B)(ii).

       In this case, the District Court abused its discretion by reviewing Fisher’s claims

without considering whether his financial status qualified him for IFP status. See Sinwell

v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976). Notably, the facts in this case support the grant

of such status.2 Furthermore, the District Court erred in dismissing Fisher’s complaint for

failure to state a claim without first permitting him to amend his complaint. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). There is no indication in the

record of bad faith, undue delay, or prejudice, and, while the District Court properly

dismissed Fisher’s Sixth Amendment claim, see Austin v. United States, 509 U.S. 602,

608 (1993), we cannot conclude that it would have been futile for Fisher to amend his


   2
     In his IFP application, Fisher stated that he is self-employed as an auto mechanic,
earning $100 to $150 per month. From March 2008 until October 2008, Fisher received
unemployment compensation in amounts varying from $750 per month to $1800 per
month. From May 2008 to August 2008, Fisher worked as a temporary construction
worker, earning approximately $3700. He also earned approximately $5000 teaching
part-time for three months. The balance in his three bank accounts totaled approximately
$350. He owned property valued at $260,000, and two cars worth approximately $1450.
His monthly expenses for food, rent, utilities, etc. totaled approximately $2000. In
addition, he owed around $1750 each month on credit cards, a business mortgage, and a
second mortgage.

                                              3
complaint.

       To the extent the District Court concluded that it lacked jurisdiction under the

Rooker-Feldman doctrine, we note that some of Fisher’s claims arise from his allegedly

discriminatory discharge, not from an “injury caused by the state-court judgment.”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005); Hoblock v.

Albany County Bd. of Elections, 422 F.3d 77, 87-88 (2d Cir. 2005) (theorizing that

plaintiff who raises employment discrimination claims in federal court, after

unsuccessfully pursuing identical claims in state court, does not allege injury from the

state judgment; “[i]nstead, he will be alleging injury based on the employer’s

discrimination.”). Moreover, in the absence of the state court record, we are unprepared

to conclude that Fisher’s claims are barred by the doctrine of res judicata. See Kremer v.

Chemical Const. Corp., 456 U.S. 461, 481-82 (1982) (holding that full faith and credit

principles require federal courts presented with Title VII cases to give preclusive effect to

state agency decisions that have been reviewed by a state court); see also Logan v.

Moyer, 898 F.2d 356, 357 (3d Cir. 1990) (holding that “[i]n the face of a conclusion of

law unsupported by facts of record before us, we are unable to exercise our appellate

function to determine whether the district court committed an error of law in concluding

that the issues in the present appeal had already been raised in suits previously filed and

dismissed.”).

       According to the District Court, Fisher “fail[ed] to allege that his employer, the

Pennsylvania State Police, engaged in discrimination, but rather takes issue with allegedly

                                              4
discriminatory decision making of the labor arbitrator.” A close reading of Fisher’s

complaint reveals, however, that his discrimination claims were aimed at the

Pennsylvania State Police: “This Plaintiff truly believes that his Civil Rights were

violated relating to my employment as a State Trooper in that I was the target of

discrimination in treatment and my employment as wrongfully terminated based upon my

sex.” Even if the District Court were accurate in construing Fisher’s allegations as

limited to discrimination in the arbitration process itself, we have held that “[a]n

arbitration award may be vacated when the arbitrator is biased against a party.” United

Indus. Workers v. Gov’t of the V.I., 987 F.2d 162, 171 (3d Cir. 1993).

       For the foregoing reasons, we will affirm in part as to the dismissal of Fisher’s

Sixth Amendment claim but will otherwise summarily vacate the December 2, 2008 order

of the District Court, and remand with instructions to grant Fisher’s motion to proceed

IFP. If the District Court continues to believe that the complaint fails to state a claim, it

shall grant Fisher a reasonable period of time in which to amend or explain why

amendment would be futile. See Grayson, 293 F.3d at 114.




                                               5
