66 F.3d 316
Claude HOSCH, Plaintiff-Appellant,
v.
NORTH CAROLINA INDUSTRIAL COMMISSION; Bandag, Incorporated;
Granville County Superior Court; Chemical
Residential Mortgage Company,
Defendants-Appellees.
No. 95-1388.
United States Court of Appeals, Fourth Circuit.
Sept. 15, 1995.
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Before WIDENER, HALL and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:
Claude Hosch appeals the district court's order denying his petition to proceed in forma pauperis. We vacate and remand with instructions.
Leave to proceed in forma pauperis should be freely granted under 28 U.S.C. Sec. 1915(a) (1988).1 The proper procedure is for the district court to consider only a petitioner's economic status in making the decision whether to file a pro se complaint in forma pauperis.2 Once filed, the complaint may be dismissed under 28 U.S.C. Sec. 1915(d)(1988), if the complaint is patently frivolous or malicious.
Here, although the district court found that Hosch satisfied the poverty requirement to proceed in forma pauperis, the court denied the petition based upon consideration of the merits. We are not able to review the court's determination that the complaint was frivolous based on the current record because the district court did not file Hosch's complaint. Therefore, we find that the district court abused its discretion.
Accordingly, we grant leave to proceed in forma pauperis on appeal and vacate the district court's order. Upon remand, the district court should grant Hosch's petition to proceed in forma pauperis and file the complaint. Once the district court has docketed the complaint, it has broad discretion to dismiss it for frivolity under Sec. 1915(d).3 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.
Cruz v. Hauck, 404 U.S. 59 (1971) (Douglas, J., concurring)
Boyce v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir.1979)
Adams v. Rice, 40 F.3d 72 (4th Cir.1994), cert. denied, 63 U.S.L.W. 3690 (U.S.1995)