Thomas C. Shrader, Plaintiff-appellant, v. Sarah Hall, Prosecuting Attorney of Mcdowell County;rudolph Murensky, Individually and Officially,defendants-appellees.thomas Creighton Shrader, Plaintiff-appellant, v. Sarah Hall, Prosecuting Attorney of Mcdowell County;rudolph Murensky, Individually and Officially,defendants-appellees, 952 F.2d 396 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 952 F.2d 396 (4th Cir. 1991) Submitted Dec. 5, 1991. Decided Dec. 30, 1991

Appeals from the United States District Court for the Southern District of West Virginia, at Bluefield. (CA-91-503-1), Charles H. Haden, II, Chief District Judge.

Thomas C. Shrader, appellant pro se.

S.D.W. Va.

NO. 91-1162 DISMISSED; NO. 91-1185 AFFIRMED.




Thomas C. Shrader appeals from the district court's orders denying relief under 42 U.S.C. 1983 (1988). We dismiss No. 91-1162 as premature, and we affirm No. 91-1185.

This case was assigned to a magistrate judge for a report and recommendation. The magistrate judge filed a report recommending that Shrader's action be dismissed. Immediately after entering an order adopting the report and dismissing the action the district court received a motion by Shrader for an extension of time within which to file objections to the magistrate judge's report. In response, the court vacated its previous order dismissing the case and granted Shrader additional time in which to file objections. However, Shrader filed a notice of appeal from the original order dismissing the case. This appeal became No. 91-1162.

After consideration of Shrader's objections, the district court entered a new order again adopting the report and dismissing the case. Shrader filed a new notice of appeal from this order which became No. 91-1185.

Because it was filed while a Fed. R. Civ. P. 59 motion was pending, Shrader's original notice of appeal is premature and of no effect. See Fed. R. App. P. 4(a) (4); Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978) (motion filed within ten days of entry of judgment which calls into question correctness of judgment is construed as Rule 59 motion). Accordingly, we dismiss the appeal in No. 91-1162 as premature.

Our review of the record in No. 91-1185 and the district court's opinion adopting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we affirm the decision in No. 91-1185 on the reasoning of the district court. Shrader v. Hall, No. CA-91-503-1 (S.D.W. Va. July 29, 1991). 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.

No. 91-1162--DISMISSED.

No. 91-1185--AFFIRMED.