USCA4 Appeal: 22-6594 Doc: 18 Filed: 02/08/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6594

JAMES A. MARTIN,

Plaintiff - Appellant,

v.

WARDEN OF FCI HAZELTON AND UNKNOWNS; WARDEN OF USP HAZELTON AND UNKNOWNS,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:22-cv-00013-GMG-RWT)

Submitted: January 18, 2024 Decided: February 8, 2024

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

James A. Martin, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6594 Doc: 18 Filed: 02/08/2024 Pg: 2 of 3

PER CURIAM:

James A. Martin, a federal prisoner, appeals the district court’s order dismissing for

failure to prosecute Martin’s action filed pursuant to Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics,

(1971). We vacate and remand.

On March 15, 2022, the magistrate judge issued an order directing Martin to pay a

partial initial filing fee and warning that failure to pay the fee within 28 days could result

in dismissal of his action without prejudice. Martin did not pay the filing fee by the

deadline, prompting the district court to dismiss Martin’s action on the ground that he had

failed to comply with the magistrate judge’s order. See Fed. R. Civ. P. 41(b). In its

dismissal order, the district court noted that, according to a return receipt, Martin received

the magistrate judge’s order regarding the filing fee on March 21. However, in his notice

of appeal, and again on appeal, Martin claimed that he never received the magistrate

judge’s order. Further, the return receipt cited by the district court reflects that Martin’s

prison facility received the magistrate judge’s order, but it does not indicate whether prison

staff forwarded the order to Martin.

Because the district court did not have an opportunity to resolve the factual question

of whether Martin received timely notice of the magistrate judge’s order, we are unable to

determine whether the court properly exercised its discretion in dismissing the action under

Rule 41(b). See Attkisson v. Holder,

(4th Cir. 2019) (providing

standard of review and listing factors relevant to Rule 41(b) dismissal). Accordingly, we

deny Martin’s pending motions, vacate the district court’s order, and remand for further

proceedings.

2 USCA4 Appeal: 22-6594 Doc: 18 Filed: 02/08/2024 Pg: 3 of 3

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

3