Tiara Bailey v. A. Edwards , 573 F. App'x 268 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6437
TIARA S. BAILEY,
Plaintiff - Appellant,
v.
A. EDWARDS, RN/Nurse; ORDIEN, OBGYN/Doctor; UNKNOWN, C.W.,
RN/Nurse,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:13-cv-00739-REP)
Submitted: May 22, 2014 Decided: May 29, 2014
Before TRAXLER, Chief Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Tiara S. Bailey, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tiara Bailey appeals the district court’s order
dismissing without prejudice her 42 U.S.C. § 1983 (2006)
complaint for failure to prosecute, after she failed to comply
with a court order requiring her to return a consent to
collection of fees form or to pay the statutory filing fee. We
vacate the order and remand for further proceedings.
A plaintiff’s failure to comply with a court order may
warrant involuntary dismissal of the action. Fed. R. Civ. P.
41(b). We review for abuse of discretion a district court’s
dismissal for failure to prosecute. Ballard v. Carlson, 882
F.2d 93, 95 (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) prejudice to
the defendant; (3) whether plaintiff has a “drawn out history of
deliberately proceeding in a dilatory fashion”; and (4) the
existence of less drastic sanctions. Doyle v. Murray, 938 F.2d
33, 34 (4th Cir. 1991). Rigid application of these factors is
unnecessary if the district court provided an “explicit and
clear” warning that the failure to comply with the order would
result in dismissal of the case, Choice Hotels Int’l, Inc. v.
Goodwin & Boone, 11 F.3d 469, 471-72 (4th Cir. 1993), but the
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propriety of such a dismissal “depends on the particular
circumstances of the case.” Ballard, 882 F.2d at 95-96.
Bailey asserts that the consent to collection of fees
form was not enclosed with the court’s order directing its
completion, and she promptly completed and returned the in forma
pauperis affidavit that she did receive. Based on Bailey’s
contentions and the current record, it is unclear whether Bailey
received a complete packet and plain notice of her obligations
for complying with the court’s order. Applying the relevant
factors, Bailey may not have been personally responsible for her
noncompliance; defendants, who have not been served, can show no
prejudice; Bailey has no history of dilatory litigation; and
Bailey could be barred by the applicable statute of limitations
from refiling her claim. Therefore, we conclude that the
district court abused its discretion in summarily dismissing her
complaint under Rule 41(b).
Accordingly, we vacate the district court’s order and
remand to allow Bailey an opportunity to comply with the court’s
fee procedure. 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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