
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-            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.             _____________________                                         -3-
