                             UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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       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.



       *
       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.       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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