Christopher Lee Alkire, Plaintiff-appellant, v. Allegany County Commissioners, in All; Donald Wade; Davida. Goad, Defendants-appellees, 894 F.2d 401 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 894 F.2d 401 (4th Cir. 1990) Submitted: Oct. 31, 1989. Decided: Jan. 16, 1990

Christopher Lee Alkire, appellant pro se.

Michael Patrick May, O'Doherty, Nead & Hoffman; Timothy Eugene Fizer, Gallager & May, for appellees.

Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and HARRISON L. WINTER, Senior Circuit Judge.


Christopher Alkire, a Maryland prisoner, filed a 42 U.S.C. § 1983 action. The magistrate recommended dismissing some claims and granting summary judgment on other claims. The district court adopted the magistrate's recommendation. Alkire appealed and then filed a motion for reconsideration within ten days of the district court's order, claiming that he had not received notice of the magistrate's submission of her report to the district court. The district court granted the motion for reconsideration.

Alkire's motion for reconsideration is treated as a motion under Fed. R. Civ. P. 59 because it was served within ten days of the district court's order dismissing the 42 U.S.C. § 1983 action. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). The Rule 59 motion nullified the notice of appeal. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). We dismiss the appeal and return the case to the district court for proceedings in furtherance of its grant of the motion to reconsider. 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.