David Owen Fisher v. S.B. SNOWDEN, Raleigh, P.D.; ALVIN LEE HARTSFIELD, State’s Witness

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.*
* 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).
Enclosed with Fisher’s informal brief on appeal is a
copy of a “Motion/Request to Clerk to Change Petitioner’s
Address,” file-stamped by the district court on February 7,
2011. The motion, however, does not appear on the district
court’s docket.

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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. 1989). Prior to 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. Because Fisher’s
change of address notification appears to have been file-
stamped, but not docketed, it is unclear whether 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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