UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLAN L. GANT, Doctor,
Petitioner-Appellant,

v.                                                                    No. 95-8589

FEDERAL BUREAU OF INVESTIGATION,
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-95-948-2)

Submitted: October 10, 1997

Decided: November 17, 1997

Before WILKINS, ERVIN, and WILLIAMS, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Allan L. Gant, Appellant Pro Se. Rebecca A. Betts, United States
Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Allan L. Gant, a federal prisoner, filed a petition for a
writ of mandamus requesting that the district court direct the FBI to
investigate a complaint he filed. Gant also filed a request to proceed
in forma pauperis. The court ordered that Gant pay a partial filing fee
of $13.75, which was fifteen percent of the money available to him
at the time of filing his petition. After Gant paid the fee, the court dis-
missed his action as frivolous under 28 U.S.C.A.§ 1915(d) (1994),
amended by 28 U.S.C.A. § 1915A (West Supp. 1997), on the basis
that Gant did not allege facts that would satisfy the court's limited
subject matter jurisdiction.

Section 1915 allows a litigant to proceed in forma pauperis upon
proof of inability to pay court costs and fees. 28 U.S.C. § 1915(a),
amended by 28 U.S.C.A. § 1915(a) (West Supp. 1997).* The statute
also allows the district court to dismiss the in forma pauperis com-
plaint sua sponte if it is frivolous or malicious. 28 U.S.C. § 1915(d).
In Church v. Attorney General, No. 95-7722, 1997 WL 560070 (4th
Cir. Sept. 10, 1997), this court addressed the issue of whether the dis-
trict court, applying pre-PLRA law, erred in dismissing Church's
action as frivolous after his payment of a partial filing fee. See
Church, 1997 WL 560070, at *5. The procedural aspects of the case
are the same ones at issue here. The court held that the district court
erred in dismissing the complaint sua sponte as frivolous. Id.

We therefore vacate the district court order dismissing Gant's peti-
tion and remand the case to the district court to allow Gant to amend
his petition, id., or have the Defendants respond to the petition and
file a motion to dismiss, if they so choose.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

VACATED AND REMANDED
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*Gant filed his petition and the district court ruled on it before the
amendments to § 1915 were made under the Prison Litigation Reform
Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA" or "the Act").

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