ALD-174                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3322
                                       ___________

                                ANDREW KUNDRATIC,
                                             Appellant
                                        v.

     TINA POLACHEK-GARTLEY; ANTHONY LUMBIS; GARY THOMAS; C. J.
       BUFALINO; MICHAEL A. SHUCOSKY; SOPHIA THOMAS; ARTHUR F.
    SILVERBLATT; GARY MICHAK; MARIE ESKRIDGE; DISTRICT ATTORNEY
    LUZERNE COUNTY; PENNSYLVANIA STATE POLICE INTERNAL AFFAIRS;
          ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
         PENNSYLVANIA DISCIPLINARY BOARD; JOHN/JANE DOES 1 5
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-15-cv-01239)
                           District Judge Richard P. Conaboy
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 10, 2016

            Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                             (Opinion filed: March 17, 2016)
                                       _________

                                        OPINION*
                                        _________
PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Andrew Kundratic appeals from the judgment of the United States

District Court for the Middle District of Pennsylvania denying him leave to proceed in

forma pauperis because his complaint is frivolous. We will summarily vacate and

remand to the District Court for further proceedings.

                                              I.

       Kundratic initiated this action in 2015 by filing a 53-page complaint against his

ex-wife, in addition to various law enforcement and attorney Defendants, alleging that

they deprived him of various constitutional rights in connection with his divorce and

subsequent custody and financial resolutions. The gravamen of Kundratic’s complaint is

that Defendant Gary Thomas, a Pennsylvania State Police Detective, began an affair with

Kundratic’s ex-wife and then “worked together [with other Defendants] to commit crimes

and perform fraud upon the courts to steal all the assets and financially take the plaintiff

broke with their malicious and deceitfully planned scheme.” Along with his complaint,

Kundratic filed a motion to proceed IFP.

       On August 28, 2015, the District Court denied Kundratic’s motion to proceed IFP,

noting that he previously filed two substantially similar actions in the same district. The

District Court dismissed both, and in each case this Court affirmed. In the instant action,

the District Court observed that Kundratic adds new parties and allegations, but

concluded that his complaint is “simply a re-packaging of allegations and theories found

wanting in Kundratic's previous lawsuits.” Kundratic filed a timely notice of appeal from

this order on September 23, 2015.
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                                             II.

        We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s

denial of leave to proceed IFP for abuse of discretion. See Deutsch v. United States, 

, 1083 (3d Cir. 1995).

       We conclude that the District Court abused its discretion here. In this Circuit,

leave to proceed IFP generally turns solely on indigence, and if the plaintiff is unable to

pay the filing fee, leave to proceed IFP should be granted. 

n.5. If a district

court grants IFP status, it must then decide whether to dismiss the complaint as frivolous

or malicious. 

Court may not, however, deny leave to proceed IFP on the

basis of non-financial considerations such as the merits of the plaintiff’s complaint, as it

did here. See Sinwell v. Shapp, 

, 18-19 (3d Cir. 1976).

       Accordingly, we will summarily vacate the District Court’s order denying

Kundratic’s leave to proceed IFP and direct the District Court to decide, on remand,

whether Kundratic’s IFP motion should be granted on financial grounds alone. If the

Court grants Kundratic’s motion, it should dismiss his complaint as frivolous or

malicious.1


1
  We agree with the District Court’s assessment of the merits of Kundratic’s complaint.
Kundratic’s theory of state action – the involvement of Gary Thomas – is an
“indisputably meritless legal theory.” Deutsch v. United States, 

, 1085 (3d
Cir. 1995). In Kundratic v. Thomas, 

, 171 (3d Cir. 2014), we affirmed
the District Court’s award of summary judgment against Kundratic in a nearly identical
suit, finding no state action. Kundratic’s complaint may also be malicious because it
duplicates two suits previously dismissed by the District Court. See Pittman v. Moore,

, 995 (5th Cir.1993).
                                              3