958 F2d 368 Smith v. W Murray B Hg Wp

958 F.2d 368

Arthur Lee SMITH, Jr., Plaintiff-Appellant,
Edward W. MURRAY, Director, Department of Corrections,
Commonwealth of Virginia; John B. Taylor, Warden, Staunton
Correctional Center; H.G. Ozinal, Staff Doctor, Staunton
Correctional Center; Wayne Rankin, Nurse, Staunton
Correctional Center; W.P. Rogers, Northern Regional
Administrator, Defendants-Appellees.

No. 92-6155.

United States Court of Appeals, Fourth Circuit.

Submitted March 2, 1992.
Decided March 18, 1992.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-91-446)

Arthur Lee Smith, Jr., appellant pro se.



Before SPROUSE and WILKINSON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.



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Arthur Lee Smith, Jr., filed suit under 42 U.S.C. § 1983 (1988) and sought to proceed in forma pauperis. The district court, on the recommendation of the magistrate judge, assessed a filing fee in accordance with Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153 (1982), and dismissed the case without prejudice when Smith failed to comply with the fee order. Smith now appeals.


Smith's main objection to the fee assessment is that he has been exempted from prison work due to an orthopedic problem. Although Smith raised this objection in the district court, he failed to explain his precise medical problem until after the court had dismissed his case. Moreover, the evidence Smith finally submitted documenting his medical exemption does not explain the deposits made to his account during the previous six months, the basis for the assessed filing fee. His medical exemption is irrelevant if he has income from other sources, as his prison account records suggest.


We conclude that the district court did not abuse its discretion in dismissing Smith's appeal without prejudice. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal. 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.