                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-1185


RONNIE CLARKE,

                 Plaintiff – Appellant,

          v.

RICHMOND BEHAVIORAL HEALTH AUTHORITY; JACK O. LANIER, DrPH,
MHA, FACHE, Current Chief Executive Officer; CHARLES D.
STORY, III, Current Human Resources Director; MICHAEL TUTT,
Current Retention and Recruitment Coordinator; ALL RICHMOND
BEHAVIORAL HEALTH AUTHORITY BOARD MEMBERS; FRANCES M.
CHRISTIAN, Ph.D., Chairperson, Richmond Behavorial Health
Authority Board Member; WAYNE BLANKS, Vice Chairperson,
Richmond Behavorial Health Authority Board Member; TRACEY
CAUSEY,   Treasury/Secretary,  Richmond   Behavorial Health
Authority Board Member; HENRY F. BULIFANT, IV, Richmond
Behavorial Health Authority Board Member; LINDA CARR,
Richmond Behavorial Health Authority Board Member; MARGARET
N. CROWE, Richmond Behavorial Health Authority Board Member
and Former Chairperson; STEVEN DANISH, Ph.D., Richmond
Behavorial Health Authority Board Member; ANDREW C. EPPS,
III, Richmond Behavorial Health Authority Board Member;
SAMUEL LILLARD, Richmond Behavorial Health Authority Board
Member; WILLIAM MIMS, Richmond Behavorial Health Authority
Board Member; NAPOLEON PEOPLES, Ph.D., Richmond Behavorial
Health Authority Board Member; ROSE STITH SINGLETON,
Richmond Behavorial Health Authority Board Member,

                 Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:09-cv-00743-REP)


Submitted:   August 25, 2010                 Decided:   November 18, 2010
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Ronnie Clarke, Appellant Pro Se.       Lisa H. Leiner, HARMAN,
CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Ronnie     Clarke       appeals      the    district    court’s      order

denying his motion to proceed in forma pauperis.                        Clarke filed

the    motion    along     with       a   complaint      alleging     that   Defendant

retaliated against him in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17

(West 2003 & Supp. 2010).                 Clarke has also moved to proceed in

formal pauperis on appeal.                  For the reasons that follow, we

grant Clarke’s application to proceed in forma pauperis on this

appeal and vacate and remand the matter to the district court. *

              A district court has discretion to grant or deny an

application      for     in    forma      pauperis       status.      See    28    U.S.C.

§ 1915(a) (2006); Dillard v. Liberty Loan Corp., 626 F.2d 363,

364 (4th Cir. 1980).            The district court’s discretion is limited

to a determination of the applicant’s poverty, good faith, and

the meritorious character of the claim.                      Dillard, 626 F.2d at

364 (citing Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46

(1915)).      Thus, when a district court determines that a petition

is    frivolous,     the      court   may   deny     leave   to    proceed    in   forma

pauperis.       Graham v. Riddle, 554 F.2d 133, 134 (4th Cir. 1977);

see    also     28   U.S.C.      § 1915(e)(2)(B)(i)          (2006)    (requiring       a

       *
       “The denial by a District Judge of a motion to proceed in
forma pauperis is an appealable order.” Roberts v. U. S. Dist.
Ct. for N. Dist. of Cal., 339 U.S. 844, 845 (1950).



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district court to dismiss a complaint if, at any time, it finds

the complaint to be frivolous).

            Based on the record before the court, it is unclear to

us that Clarke’s complaint was “fundamentally the same” as the

claim he filed in his previous action against Defendant.                              To the

contrary, the complaint appears to address conduct that occurred

after, and in retaliation for, the conduct complained of in his

prior action.           Moreover, it does not appear beyond doubt that

Clarke’s complaint lacks “an arguable basis in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United

States,     566    F.3d      392,     399     (4th       Cir.     2009)    (“Examples       of

frivolous claims include those whose factual allegations are so

nutty,    delusional,          or     wholly          fanciful       as    to    be   simply

unbelievable.”)           (internal         quotation           marks      and     citations

omitted).         In    so   holding,       we       express    no   opinion     as   to    the

viability    of        Clarke’s     claims,       or    whether      dismissal     for     some

other reason under § 1915 would have been inappropriate.

            Accordingly, we grant Clarke’s application to proceed

in forma pauperis on appeal, vacate the district court’s order

dismissing    Clarke’s         complaint         as     frivolous,        and    remand    for

further proceedings consistent with this opinion.                                We dispense

with oral argument because the facts and legal contentions are




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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.



                                                  VACATED AND REMANDED




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