UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-7902

JOHN HERMAN PLATH, Plaintiff - Appellant, versus DAVID BEASLEY, Governor; MICHAEL B. MOORE, Director, Department of Corrections; SERGEANT FOSTER; PRIS MACK, Deputy Warden; SERGEANT JOHNSON, Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., District Judge. (CA-95-2985-6-3AK)

Submitted: May 16, 1996 Decided: May 30, 1996 Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

John Herman Plath, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant appeals the district court's orders dismissing his 42 U.S.C. § 1983 (1988) complaint and denying his motion for recon- sideration. The district court assessed a filing fee in accordance with Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982), and dismissed the case when Appellant failed to comply with the fee order. Finding no abuse of discretion, we affirm the district court's orders. However, we modify the dis- missal order to reflect that the dismissal is without prejudice. We deny Appellant's motion for appointment of counsel and grant his motion to proceed in forma pauperis on appeal. We dispense with oral argument because the facts and legal contentions are adequate- ly presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED