UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CURTIS LEON TAYLOR, SR.,
Plaintiff-Appellant,

v.                                                                      No. 95-6380

P. L. HUFFMAN; STATE OF GEORGIA,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-92-800-R)

Argued: May 9, 1997

Decided: July 22, 1997

Before HALL, WILKINS, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Justin S. Antonipillai, Student Attorney, WASHINGTON
COLLEGE OF LAW, Washington, D.C., for Appellant. Mark Ralph
Davis, Senior Assistant Attorney General, Criminal Law Division,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellees. ON BRIEF: Anthony D. Bornstein, Supervising Attorney,
WASHINGTON COLLEGE OF LAW, Washington, D.C., for Appel-
lant. James S. Gilmore, III, Attorney General, Criminal Law Division,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Curtis Leon Taylor, Sr. appeals an order dismissing for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b) his claim
against P. L. Huffman under 42 U.S.C.A. § 1983 (West 1994).
Because the district court failed to determine properly whether the
sanction of dismissal was appropriate, we vacate the decision below
and remand for the district court to conduct the correct analysis.

I.

Taylor seeks to recover monetary damages against Huffman, who
was the warden of Bland Correctional Center in Virginia where Tay-
lor was incarcerated when he initiated this § 1983 claim. Following
a remand by this court as a result of Taylor's prior appeal from a grant
of summary judgment in favor of Huffman, see Taylor v. Huffman,
36 F.3d 1094 (4th Cir. 1994) (unpublished table decision) (per
curiam), the district court referred this action to a magistrate judge for
an evidentiary hearing and for a report and recommendation. The
magistrate judge issued an order scheduling the evidentiary hearing
for approximately two months later, but provided no warning that
failure to attend the hearing could result in the dismissal of Taylor's
claim. Nevertheless, when Taylor failed to appear for the hearing,1 the
district court dismissed his claim sua sponte pursuant to Rule 41(b).

II.

Rule 41(b) provides that a claim may be dismissed"[f]or failure of
the plaintiff to prosecute or to comply with ... any order of court" and
that such a dismissal "operates as an adjudication upon the merits."
_________________________________________________________________
1 As we learned at oral argument, Huffman's attorney likewise did not
appear at the hearing.

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See Fed. R. Civ. P. 41(b). We review the dismissal of an action pursu-
ant to Rule 41(b) for abuse of discretion. See Davis v. Williams, 588
F.2d 69, 70 (4th Cir. 1978).

Because dismissal is a severe sanction that "should not be invoked
lightly," district courts must consider four factors in determining
whether to dismiss a claim under Rule 41(b) for failure to prosecute:

          (1) the degree of personal responsibility on the part of the
          plaintiff; (2) the amount of prejudice to the defendant
          caused by the delay; (3) the presence or absence of a drawn
          out history of deliberately proceeding in a dilatory fashion;
          and (4) the effectiveness of sanctions less drastic than dis-
          missal.

Id. (internal quotation marks omitted); see Doyle v. Murray, 938 F.2d
33, 34 (4th Cir. 1991); Hillig v. Commissioner , 916 F.2d 171, 174
(4th Cir. 1990). A district court need not engage in a rigid application
of this test, however, when a litigant has ignored an express warning
that failure to comply with an order will result in the dismissal of his
claim. See Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989).

Here, there is nothing in the record from which we can discern that
the district court applied this four-prong analysis prior to dismissing
Taylor's claim. In its summary dismissal, the district court noted only
that Taylor's "failure to appear has resulted in a disruption to the
Court's orderly conduct of its business" and"manifests his unwilling-
ness or inability to pursue the claims set forth in the complaint." J.A.
160. Thus, we are left to guess whether the district judge considered
the appropriate factors.

Huffman contends that only one of these factors--Taylor's per-
sonal responsibility for the conduct in this case--has any bearing on
whether dismissal was appropriate and that the remaining consider-
ations are of "little or no consequence." Brief for Appellee at 7. Huff-
man rests this contention on the fact that Taylor is a frequent pro se
litigant in federal court who undoubtedly was aware of the possibility
that his case could be dismissed if he failed to appear at the evidenti-
ary hearing. Huffman cites no authority, and we have found none, for
the proposition that the "personal responsibility" factor is the sole

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guide of the discretion of a district court under Rule 41(b) when the
party facing dismissal habitually litigates in federal court. Indeed,
except in cases in which a litigant ignores an explicit warning that dis-
missal will result from his failure to comply with an order, see
Ballard, 882 F.2d at 95-96, we have consistently instructed lower
courts to consider all of the required factors before dismissing a case
under Rule 41(b), see, e.g., Hillig, 916 F.2d at 174 (noting that "[t]his
Circuit requires that the trial court consider four factors before dis-
missing a case for failure to prosecute"); Herbert v. Saffell, 877 F.2d
267, 270 (4th Cir. 1989) (explaining that "[d]istrict courts must take
four factors into account in deciding whether Rule 41(b) dismissal is
appropriate as a sanction"). The fact that Taylor is a frequent litigant
does not change the fact that no warning was given that his failure to
appear at the evidentiary hearing would result in dismissal.2 There-
fore, the district court should have considered each of the four factors
prior to dismissing Taylor's claim.

Huffman next suggests that even if the district court erred in failing
to consider all of the factors, we nonetheless may affirm because their
application demonstrates that dismissal was proper. However,
because of the incompleteness of the record, we are in no position to
conduct this analysis. Finally, Huffman asserts that there is no less
drastic sanction available other than dismissal since Taylor has sought
to proceed in forma pauperis. We note, however, that because Taylor
had been released from prison, the magistrate judge assessed him the
full filing fee and apparently revoked his in forma pauperis status.
Accordingly, a sanction less severe than dismissal may be available
to the district court.

III.

We vacate the dismissal of Taylor's § 1983 claim and remand for
the district court to apply the correct four-part analysis in determining
whether dismissal is proper under Rule 41(b). We express no opinion
_________________________________________________________________
2 Of course, Taylor's litigious history is a relevant consideration for the
district court on remand; we simply hold that even if the district court
considered Taylor's experience with federal court procedures (and the
record does not indicate whether the court did so), this fact alone is not
enough to obviate the need to consider each of the required factors.

                    4
as to whether dismissal is appropriate under this analysis, recognizing
that the district court is in the best position to make this determination
in the first instance based on a complete record.

VACATED AND REMANDED

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