Gallant v. George

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1058



                                ALFRED A. GALLANT, II,



                                Plaintiff, Appellant,



                                          v.



                              SGT. DAVID GEORGE, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



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



                                Torruella, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Alfred A. Gallant, Jr. on brief pro se.
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                                    April 24, 1997

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                 Per Curiam.   Plaintiff Alfred Gallant,  a Maine inmate,
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            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
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            pauperis.    On  September  10,  1996,  the  magistrate-judge
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            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).
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            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.
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            1915(b)(1) (the  court "shall  assess and, when  funds exist,



            collect" an  initial fee); see,  e.g., Hampton v.  Hobbs, 106
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            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,
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            prejudice.   See, e.g., Hachikian  v. FDIC, 96  F.3d 502, 504
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            (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
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            prejudice rather than without prejudice.  As so modified, the
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            judgment is affirmed.
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