

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1058

                    ALFRED A. GALLANT, II,

                    Plaintiff, Appellant,

                              v.

                  SGT. DAVID GEORGE, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

       [Hon. Steven J. McAuliffe, U.S. District Judge]                                                                 

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Campbell, Senior Circuit Judge,                                                         
                  and Boudin, Circuit Judge.                                                       

                                         

Alfred A. Gallant, Jr. on brief pro se.                                  

                                         

                        April 24, 1997
                                         

     Per Curiam.   Plaintiff Alfred Gallant,  a Maine inmate,                           

filed a civil-rights action against thirteen prison officials

in May 1996  complaining of an assortment  of alleged abuses.

Accompanying his complaint was a request to proceed in  forma                                                                         

pauperis.    On  September  10,  1996,  the  magistrate-judge                    

imposed  an initial  partial filing  fee of  $28.00--a figure

representing twenty percent of the average monthly balance in

plaintiff's prison account for the six-month period preceding

the filing of  his complaint.   See 28  U.S.C.    1915(b)(1).                                               

When plaintiff failed  to pay  such fee by  the September  30

deadline, the  district court  dismissed  the action  without

prejudice.  This ruling is now challenged on appeal. 

     Plaintiff objects that  he lacked the  means to pay  the

initial  filing fee.    The record  reveals  that during  the

relevant period--in  May, in September,  and at all  times in

between--the  balance in his prison account stood at zero.  A

prisoner cannot be barred from  bringing a civil action  when

he "has  no assets and no  means by which to  pay the initial

partial filing fee."   28 U.S.C.   1915(b)(4); see also id.                                                                         

1915(b)(1) (the  court "shall  assess and, when  funds exist,

collect" an  initial fee); see,  e.g., Hampton v.  Hobbs, 106                                                                    

F.3d 1281, 1284 (6th Cir. 1997).

     But while plaintiff's failure  to pay the initial filing

fee was thus excusable, his serious default in another regard

cannot  be  excused.    Pursuant  to  the  magistrate-judge's

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September 10 order, he  was directed to file  a consolidated,

amended complaint by  September 30.  Plaintiff never  did so,

and never explained his failure to do so.  Instead, he simply

submitted  a  series of  frivolous  objections pertaining  to

other aspects  of the magistrate-judge's order.   Under these

circumstances, the action could  properly have been dismissed

for  lack of  prosecution.    Particularly given  plaintiff's

history  of abusive  litigation, we  think it  appropriate to

affirm  the  dismissal  on  this  basis--with   the  judgment

modified to  reflect a  dismissal with, rather  than without,                                                                        

prejudice.   See, e.g., Hachikian  v. FDIC, 96  F.3d 502, 504                                                      

(1st  Cir.   1996)  (appellate   court  may  affirm   on  any

alternative ground made manifest by the record).

     The judgment  is modified to provide  for dismissal with                                                                         

prejudice rather than without prejudice.  As so modified, the                                                                         

judgment is affirmed.                                  

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