UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 dismissed 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 complaint 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 district 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 petition 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 contentions 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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