Joseph P. Payne, Sr., Plaintiff-appellant, v. Thomas B. Fairburn; Garland K. Stokes; William P. Rogers;john Taylor; Edward W. Murray; Fred E. Jordon; John Does;c/o Major Sam Filipio; Lieutenant Watson; John Latanelewis, Iii, 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 Oct. 8, 1991. Decided Dec. 13, 1991

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (CA-88-1212-AM), Albert V. Bryan, Jr., Chief District Judge.

Joseph P. Payne, Sr., appellant pro se.

E.D. Va.


Before WIDENER, SPROUSE and WILKINS, Circuit Judges.



Joseph Payne appeals the district court's dismissal without prejudice of his 42 U.S.C. § 1983 (1988) action for failure to demonstrate exhaustion of state remedies. Within ten days of the dismissal, Payne asked the district court to reconsider its decision on the grounds that he was actively pursuing state exhaustion. Because his request questioned the correctness of the district court's judgment and was filed within ten days of that judgment, it is construed as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Payne filed his notice of appeal before the district court acted on his request. Thus, his notice of appeal became a nullity and, therefore, we lack jurisdiction to hear his appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Fed. R. App. P. 4(a) (4).

Accordingly, we dismiss the appeal for lack of jurisdiction and return the case to the district court for a ruling on Payne's motion to reconsider its earlier dismissal.*  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.



We note that the district court should consider this Court's earlier concern that Payne be protected from the running of the statute of limitations in this action while he exhausts his state remedies