Joseph P. Payne, Sr., Plaintiff-appellant, v. Thomas B. Fairburn; Garland K. Stokes; William P. Rogers;john Taylor; Edward W. Murray; Fred E. Jordon; John Does;c/o Major Sam Filipio; Lieutenant Watson; John Latanelewis, Iii, Defendants-appellees, 952 F.2d 396 (4th Cir. 1991)

Joseph Payne appeals the district court's dismissal without prejudice of his 42 U.S.C. § 1983 (1988) action for failure to demonstrate exhaustion of state remedies. Within ten days of the dismissal, Payne asked the district court to reconsider its decision on the grounds that he was actively pursuing state exhaustion. Because his request questioned the correctness of the district court's judgment and was filed within ten days of that judgment, it is construed as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Payne filed his notice of appeal before the district court acted on his request. Thus, his notice of appeal became a nullity and, therefore, we lack jurisdiction to hear his appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Fed. R. App. P. 4(a) (4).

Accordingly, we dismiss the appeal for lack of jurisdiction and return the case to the district court for a ruling on Payne's motion to reconsider its earlier dismissal.^*  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.