T. BARRY GRAY, individually and as executor of the estate of Thelma L. Gray v. Angela L. Martinez, individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2968
___________
T. BARRY GRAY, individually and as
executor of the estate of Thelma L. Gray,
Appellant
v.
ANGELA L. MARTINEZ, individually and in her capacity as Director of Office of
Judicial Support of Delaware County; DEBORAH L. GASTON, individually and in her
capacity as former Director of Office of Judicial Support of Delaware County; TCIF REO
CIT, LLC; SELECT PORTFOLIO SERVICING, INC., f/k/a Fairbanks Capital
Corporation; WACHOVIA BANK NAT’L ASSOC., f/k/a First Union National Bank;
JOSEPH F. McGINN, individually and in his capacity as Sheriff of Delaware County
___________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
Civil Action No. 08-cv-02603
(Honorable Timothy J. Savage)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 13, 2009
Before: SCIRICA, Chief Judge, JORDAN and STAPLETON, Circuit Judges.
(Filed : November 19, 2009)
_________
OPINION OF THE COURT
_________

-- 1 of 4 --

2
PER CURIAM.
T. Barry Gray, proceeding pro se, appeals an order of the United States District
Court for the Eastern District of Pennsylvania denying his motion to proceed in forma
pauperis and an order denying his motion for reconsideration. For the reasons discussed
below, we will vacate the District Court’s orders and remand for further proceedings.
Gray filed a pro se motion to proceed in forma pauperis in connection with a civil
rights action. Gray filed his motion individually and as executor of the estate of his
mother, Thelma Gray. The District Court denied the motion, noting that Gray had only
submitted an affidavit regarding his financial condition and that he had not indicated
whether the estate was solvent and still being administered.
Gray filed a motion for reconsideration and attested that the estate was insolvent
and was still being administered. The District Court denied the motion. In a subsequent
opinion, the District Court explained that this action was the third attempt by Gray family
members to have a federal court adjudicate a mortgage foreclosure dispute previously
decided in state court. The District Court found the complaint legally frivolous under 28
U.S.C. § 1915(e)(2)(B), stating that there is no possible legal theory upon which Gray
could obtain relief. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Sinwell v. Shapp, 536 F.2d
15, 16 (3d Cir. 1976). We review the denial of a motion to proceed in forma pauperis and
the denial of a motion for reconsideration for abuse of discretion. See Sinwell, 536 F.2d

-- 2 of 4 --

3
at 19 (in forma pauperis motion); Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673
(3d Cir. 1999) (motion for reconsideration).
In this Circuit, leave to proceed in forma pauperis is based on a showing of
indigence. Deutsch v. United States, 67 F.3d 1080, 1084 n.5 (3d Cir. 1995). The court
reviews the litigant’s financial statement, and, if convinced that he or she is unable to pay
the court costs and filing fees, the court will grant leave to proceed in forma pauperis. Id.
In cases where leave is granted, the court thereafter considers the separate question
whether the complaint should be dismissed as frivolous or malicious under 28 U.S.C.
§ 1915(e)(2)(B). See id. (discussing the standard for dismissal in former § 1915(d),
which is now set forth in § 1915(e)(2)(B)). The District Court thus abused its discretion
in denying Gray in forma pauperis status on his own behalf based on a determination that
the complaint is legally frivolous. See Sinwell, 536 F.2d at 19 (holding that the district
court abused its discretion in denying in forma pauperis status based on a finding of
improper venue rather than on economic status).
The District Court’s denial of in forma pauperis status to the estate, however, was
correct on other grounds. See Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 333 n.8
(3d Cir. 2000) (noting appellate court may affirm a decision on a ground other than that
relied on by the district court). Only natural persons may proceed in forma pauperis
under 28 U.S.C. § 1915. Rowland v. California Men’s Colony, 506 U.S. 194, 196 (1993).

-- 3 of 4 --

This appeal also raises a question as to whether Gray, as a non-lawyer, may represent1
the estate. See, e.g., Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (holding that
an executor may not proceed pro se when the estate has beneficiaries or creditors other
than the litigant). Based on our decision that the estate may not proceed in forma
pauperis, it is unnecessary to reach this question.
We do not imply any disagreement with the District Court’s ultimate conclusion as to2
the viability of Gray’s complaint. The decision of whether the complaint is subject to
dismissal, however, must await the determination of whether Gray is entitled to proceed
in forma pauperis. If he is or if he pays the necessary filing fee, dismissal could not
properly occur unless and until Gray actually files his complaint.
4
Because an estate is not a natural person, it may not so proceed. Accordingly, we will1
vacate the District Court’s orders and remand for further proceedings. On remand, the
District Court shall address whether Gray is entitled to proceed in forma pauperis on his
own behalf.2

-- 4 of 4 --