Gloria Green, Plaintiff-appellant, v. Arnold Hopkins, Sharon L. Johnson, Defendants-appellees, 877 F.2d 59 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 877 F.2d 59 (4th Cir. 1989) Submitted March 10, 1989. Decided May 3, 1989. Rehearing Denied June 1, 1989

Gloria Green, appellant pro se.

John Joseph Curran, Jr., Attorney General, Maureen Mullen Dove, Office of the Attorney General, for appellees.

Before K.K. HALL, PHILLIPS, and MURNAGHAN, Circuit Judges.


Gloria Green appeals from the district court's order denying her motion to vacate the judgment entered in this 42 U.S.C. § 1983 action.*  Our review of the record and the district court's opinion discloses that this appeal is without merit. Because the district court correctly dismissed Green's claim on its merits, it was not an abuse of discretion for the district court to deny Green's motion to vacate. Accordingly, we affirm on the reasoning of the district court. Green v. Hopkins, C/A No. 87-3098-PN (D. Md. Nov. 3, 1988). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.



Although Green's motion was nominally filed under Fed. R. Civ. P. 59, the record does not reflect that it was served on the defendants within 10 days of entry of judgment, as required by Rule 59. Only a motion timely served under Rule 59 tolls as to the underlying judgment the running of the appeal period. Sutherland v. Fitzgerald, 291 F.2d 846 (10th Cir. 1961)