Samuel Lee Brown, Plaintiff-appellant, v. Dr. Hencefroth; Debra Morris, Defendants-appellees, 803 F.2d 1180 (4th Cir. 1986)

Samuel Lee Brown, a Virginia inmate, appeals the district court's dismissal without prejudice of his civil rights complaint. The district court on March 7, 1986 directed Brown to pay a partial filing fee of $24.00, an amount equal to fifteen percent of the money deposited to his prison account over the preceding six months. The district court further advised Brown of his right to show special circumstances which would warrant excusing payment of the fee. Brown was informed that if he did not, within 30 days, pay the fee or explain his inability to pay, the case would be dismissed.

On May 6, 1986, the case was dismissed for failure to comply with the court's order. Brown filed on May 29, 1986 a motion for reconsideration, claiming that he had not received the court's March 7 order. The district court denied the motion for reconsideration. Brown appeals.

Because it was filed outside the ten-day period set forth in Rule 59, Fed. R. Civ. P., the motion for reconsideration is viewed as a motion under Rule 60(b), Fed. R. Civ. P. The standard of review of rulings on a Rule 60(b) motion is whether the district court abused its discretion. We note that the record reflects that a copy of the March 7 order was sent to Brown. Moreover, the dismissal of the complaint was without prejudice and presents no bar to Brown's refiling his complaint and pursuing his claim upon payment of any new fee imposed. Under these circumstances, we cannot say that the district court's decision was an abuse of discretion.

As our review of the record and other materials before us indicates that it would not significantly aid the decisional process, we dispense with oral argument.

AFFIRMED.