Roger Roy Morris, Plaintiff-appellant, v. United States of America, Defendant-appellee, 838 F.2d 1210 (4th Cir. 1988)

Roger Morris, a federal inmate, filed this complaint pursuant to the Federal Tort Claims Act asserting that his personal property was lost during his transfer from one prison facility to another. On July 21, 1987, the district court, relying on Schiavone v. Fortune, 477 U.S. 21 (1986), dismissed the complaint due to Morris' failure to sue the proper defendant within the Act's six-month limitations period. On August 7, 1987, Morris filed a motion to reconsider pursuant to Rule 60(b), Fed. R. Civ. P. The district court denied the motion on August 18, 1987, and on October 16, 1987 Morris noted this appeal.

A Rule 60(b) motion does not toll the time for appealing the underlying judgment. Moreover, because Morris' motion was filed more than ten days after entry of judgment, it may not be construed as a Rule 59 motion tolling the appeal period under Fed. R. App. P. 4(a) (4). Thus, Morris' notice of appeal is timely only as to the denial of the Rule 60(b) motion, and the appeal is dismissed as to the underlying judgment. See United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982). The decision whether a Rule 60(b) motion should be granted is left to the discretion of the district court, and its decision should only be overturned where there is an abuse of that discretion. Finding that the district did not abuse its discretion in denying Morris' motion, we affirm the denial of Rule 60(b) relief.

We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED IN PART; DISMISSED IN PART.