David Fisher v. S. Snowden
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-ct-03025-BO Copies to all parties and the district court/agency. [998632715]. Mailed to: Fisher. [11-6339]
Appeal: 11-6339
Document: 12
Date Filed: 07/15/2011
Page: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6339
DAVID OWEN FISHER,
Plaintiff - Appellant,
v.
S.B. SNOWDEN, Raleigh, P.D.; ALVIN LEE HARTSFIELD, State’s
Witness,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-ct-03025-BO)
Submitted:
July 11, 2011
Decided:
July 15, 2011
Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
David Owen Fisher, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
David
Fisher
appeals
the
district
court’s
order
dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to
prosecute.
Fisher filed the action while incarcerated, and the
district court issued an order on February 7, 2011, directing
prison officials to deduct filing fees from Fisher’s trust fund
account.
On February 22, 2011, the order was returned to the
district court as undeliverable due to Fisher’s release from
prison on February 3, 2011.
The district court dismissed his
action for failure to prosecute on February 23, 2011, finding
that Fisher had neither provided the court with a forwarding
address nor contacted the court since his release.
On March 9, 2011, Fisher simultaneously filed in the
district court a motion entitled “Request for a Certificate of
Appealability,” and a notice of appeal of the district court's
dismissal. *
Enclosed with Fisher’s informal brief on appeal is a
copy
“Motion/Request
of
a
Address,”
2011.
file-stamped
by
to
the
Clerk
to
district
Change
court
on
Petitioner’s
February
7,
The motion, however, does not appear on the district
court’s docket.
*
As recognized by the district court, Fisher’s notice of
appeal divested the court of jurisdiction over his motion. See
Dixon v. Edwards, 290 F.3d 669, 709 n.14 (4th Cir. 2002).
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Fed. R. Civ. P. 41(B) permits dismissal of an action
“[f]or
failure
of
the
plaintiff
to
prosecute.”
This
court
reviews for abuse of discretion a district court’s dismissal for
failure to prosecute.
Ballard v. Carlson, 882 F.2d 93, 96 (4th
Cir.
to
1989).
Prior
dismissing
a
case
for
failure
to
prosecute, a district court must consider the following factors:
“(1) the plaintiff’s degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of a
drawn
out
history
of
deliberately
proceeding
in
a
dilatory
fashion; and (4) the effectiveness of sanctions less drastic
than dismissal.”
Hillig v. Comm’r of Internal Revenue, 916 F.2d
171, 174 (4th Cir. 1990).
Based
on
the
current
record,
we
cannot
determine
whether the district court abused its discretion in dismissing
Fisher’s complaint for failure to prosecute.
change
of
stamped,
address
but
not
notification
docketed,
it
appears
is
to
unclear
Because Fisher’s
have
whether
been
file-
Fisher
was
diligent in filing the notification in the district court.
Accordingly, we vacate the district court’s order and
remand
with
instructions
for
the
district
court
to:
(1) construe Fisher’s Request for a Certificate of Appealability
as
a
Fed.
R.
Civ.
P.
59(e)
motion
to
alter
or
amend;
(2) determine whether Fisher timely filed a change of address
notification; and (3) determine whether any such notification
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satisfied Fisher’s burden to prosecute.
We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
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