Chalmers v. Winston , 5 F. App'x 214 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CARL R. CHALMERS, 
Plaintiff-Appellant,
v.
ANDREW J. WINSTON, individually
and in his official capacity as  No. 00-6943
Chairman of the Board of
Corrections; RONALD ANGELONE,
Director of the Virginia Department
of Corrections,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CA-98-1714)
Submitted: January 19, 2001
Decided: March 6, 2001
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Carl R. Chalmers, Appellant Pro Se. Mark Ralph Davis, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellees.
2 CHALMERS v. WINSTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carl R. Chalmers appeals the district court’s orders denying relief
on his 42 U.S.C.A. § 1983 (West Supp. 2000) complaint and denying
his motion for reconsideration filed pursuant to Fed. R. Civ. P. 59(e).
A motion to alter or amend judgment under Rule 59(e) shall be filed
no later than ten days after entry of the judgment. See Fed. R. Civ.
P. 59(e). Because Chalmers’ motion was not filed within ten days of
the entry of judgment, the district court properly considered it as a
Rule 60(b) motion, rather than a Rule 59(e) motion. See In re Burn-
ley, 988 F.2d 1, 3 (4th Cir. 1993) (per curiam). A Rule 60(b) motion
does not bring up for review the merits of the underlying substantive
judgment, nor does it toll the period for filing an appeal of the under-
lying judgment. See Browder v. Director, Dep’t of Corrections, 434
U.S. 257, 263 n.7 (1978).
Because Chalmers did not file his Rule 59(e) motion within ten
days of the district court’s order dismissing his § 1983 complaint,
entered on May 5, 2000, the time period for filing his appeal of that
order was not tolled. See Fed. R. App. P. 4(a)(4). Therefore, Chal-
mers’ appeal is only timely as to the district court’s denial of his sub-
sequent motion for reconsideration. This Court reviews a denial of a
Rule 60(b) motion for abuse of discretion. See NOW v. Operation
Rescue, 47 F.3d 667, 669 (4th Cir. 1995) (per curiam).
We have reviewed the record and conclude that the district court’s
denial of Chalmers’ motion for reconsideration did not constitute an
abuse of discretion. Accordingly, we dismiss Chalmers’ appeal of the
district court’s order dismissing his § 1983 complaint for lack of juris-
diction because Chalmers’ notice of appeal was untimely as to that
order. We deny Chalmers’ motion to consolidate as moot and affirm
the district court’s denial of Chalmers’ motion for reconsideration,
particularly in light of our recent decision in Washlefske v. Winston,
CHALMERS v. WINSTON 3
234 F.3d 179 (4th Cir. 2000). We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
DISMISSED IN PART; AFFIRMED IN PART