                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2009

TCIF Reo CIT LLC v. Patricia Gray
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3598




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Recommended Citation
"TCIF Reo CIT LLC v. Patricia Gray" (2009). 2009 Decisions. Paper 1764.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1764


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BLD-78                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-3598
                                     ___________

                                 TCIF REO CIT, LLC

                                           v.

                             PATRICIA R. GRAY;
                              T. BARRY GRAY;
                      ALL OCCUPANTS OF 141 7TH AVENUE

                                   T. Barry Gray,
                                       Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. Civil No. 08-cv-02766)
                    District Judge: Honorable Edmund V. Ludwig
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 15, 2009
              Before: MCKEE, FISHER and CHAGARES, Circuit Judges

                           (Opinion Filed: March 06, 2009 )
                                     _________

                                      OPINION
                                      _________

PER CURIAM

     T. Barry Gray appeals the District Court’s order denying his motion to proceed in
forma pauperis and dismissing the action for lack of subject-matter jurisdiction. In June

2008, Gray filed a motion to proceed in forma pauperis with a caption listing himself as a

defendant and TCIF REO CIT, LLC as plaintiff. He did not describe any claims he

wished to bring or explain whether he was attempting to remove an action from state

court. The District Court denied Gray’s motion to proceed in forma pauperis and

dismissed the action for lack of subject-matter jurisdiction. Gray filed a timely notice of

appeal.

       We have jurisdiction under 28 U.S.C. § 1291. We review the denial of a motion to

proceed in forma pauperis for abuse of discretion. 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).

The District Court denied Gray’s motion on the grounds that the action was legally

frivolous. However, if the application is complete, the District Court should only

consider whether the applicant is economically eligible. Sinwell v. Shapp, 536 F.2d 15,

19 (3d Cir. 1976). It is only after leave to proceed in forma pauperis has been granted

that the analysis under 28 U.S.C. § 1915(e)(2)(B) is undertaken and a complaint may be

dismissed as frivolous. Thus, we conclude that the District Court abused its discretion in

denying the motion to proceed in forma pauperis.

       Although the District Court noted that the motion to proceed in forma pauperis

was filed without a complaint, it proceeded to assume that the case was based on a state

court action in ejectment and determined that it lacked subject-matter jurisdiction.



                                             2
Because the motion to proceed in forma pauperis was denied and no action had been

filed, the question of subject-matter jurisdiction was not before the District Court.

Moreover, a court should not dismiss a matter when it does not know the basis for the

action.

          Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily vacate

the District Court’s order and remand the matter for further proceedings. See Third

Circuit I.O.P. 10.6. On remand, the District Court should give Gray an opportunity to

state the factual and legal basis for his action and determine whether Gray is financially

eligible to proceed in forma pauperis before undertaking an analysis pursuant to 28

U.S.C. § 1915(e)(2)(B).




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