USCA4 Appeal: 24-6459 Doc: 13 Filed: 01/02/2025 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6459

TERRANCE L. REED,

Plaintiff - Appellant,

v.

UNKNOWN,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:23-cv-00839-JAG-MRC)

Submitted: September 26, 2024 Decided: January 2, 2025

Before WYNN and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Terrance L. Reed, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6459 Doc: 13 Filed: 01/02/2025 Pg: 2 of 3

PER CURIAM:

Terrance L. Reed appeals the district court’s order dismissing his

complaint for failure to timely comply with the magistrate judge’s order to pay the initial

partial filing fee of $0.81 or aver that he lacked sufficient assets to do so. We review a

district court’s order dismissing an action for failing to comply with a court order for abuse

of discretion. Atkisson v. Holder,

(4th Cir. 2019). In exercising its

discretion in determining an appropriate sanction for failing to comply with a court order,

a district court “should weigh: (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.”

(internal quotation marks omitted).

Here, these factors do not support dismissal. First, Reed’s efforts to comply with the

district court’s order mitigate his degree of personal responsibility. The magistrate judge

initially ordered Reed to file an application to proceed in forma pauperis and Reed timely

complied. Thereafter, the magistrate judge ordered Reed to pay the initial partial filing fee

or aver that he could not do so, giving Reed 30 days to comply with the order. The record

indicates that Reed attempted to obtain access to his prison trust fund account and was told

that he had to request it from the courts. His filing documenting that communication was

construed as nonresponsive. Moreover, the magistrate judge’s order did not warn Reed that

failing to pay the 81-cent fee within 30 days could result in dismissal.

Second, because any defendants have not yet been identified, and only three months

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elapsed between Reed’s filing of the complaint and the court’s dismissal, there has been no

prejudice caused to any defendant.

Third, Reed did not have any history of engaging in dilatory tactics; he is not a serial

plaintiff, and he timely complied with the only other order issued in this action.

And fourth, a sanction less drastic than dismissal would have served the district

court’s purposes. Although the district court’s dismissal was without prejudice, the statute

of limitations is still running, and the record demonstrates how difficult it is for an inmate

to obtain the documents necessary to re-file his suit, particularly when confined to a Special

Housing Unit.

Although a district court may dismiss a case without warning “in appropriate

circumstances,” “the facts of [this] case” did not warrant dismissal. Attkisson v. Holder,

(4th Cir. 2019) (internal quotation marks omitted) (quoting Reizakis v.

Loy,

(4th Cir. 1974)). We therefore vacate the district court’s order

dismissing Reed’s complaint and remand with instructions to grant Reed additional time to

either pay the initial filing fee or affirm his inability to do so. 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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