Leen

Robert Burdett Butler appeals pro se the order dismissing with prejudice his 42 U.S.C. § 1983 action for damages and injunctive relief from a claim of a conspiracy between his defense counsel and the judge in his state court trial. We reverse.

Butler’s complaint alleged that his public defender and the state trial judge conspired to deny him his right to effective assistance of counsel during his criminal trial. After granting Butler leave to proceed in forma pauperis, but requiring him to pay a partial filing fee, the district court sua sponte dismissed the action before service of process as frivolous under 28 U.S.C. § 1915 (d).

Butler does not raise the question whether his partial payment of the filing fee precluded the district court from dismissing his action before service of process. We consider the issue sua sponte, however, because it is a pure question of law and the opposing parties will not be prejudiced.

Each circuit that has considered this issue has held that a district court may not sua sponte dismiss an action as frivolous under section 1915(d) after the plaintiff has paid a partial filing fee. Clark v. Ocean Brand Tuna, 974 F.2d 48, 50 (6th Cir.1992); Grissom…