Gallant v. George ( 1997 )

[NOT FOR PUBLICATION]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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