Thomas Matthews Newman, Plaintiff-appellant, v. J. Walker, Sergeant; Clark, Correctional Officer; Marks,correctional Officer; Mary Murphy, Nurse; R.wilkins, Correctional Officer; Stith,correctional Officer,defendants-appellees, 73 F.3d 358 (4th Cir. 1995)

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US Court of Appeals for the Fourth Circuit - 73 F.3d 358 (4th Cir. 1995)

Submitted Dec. 14, 1995. Decided Dec. 22, 1995


Thomas Matthews Newman, Appellant Pro Se.

Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.

PER CURIAM:


Appellant appeals the district court's orders dismissing his 42 U.S.C. § 1983 (1988) complaint and denying relief on his motion to reconsider. The district court assessed a filing fee in accordance with E.D. Va. Loc. R. 28(C) (4) and Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982), and dismissed the case without prejudice when Appellant failed to comply with the fee order. Finding no abuse of discretion, we affirm the district court's order dismissing the complaint for failure to pay the partial filing fee.

With regard to Appellant's motion to reconsider, the district court denied relief because it was untimely under Rule 59(e) of the Federal Rules of Civil Procedure. We note, however, that Appellant's motion did not state whether it was filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Because Appellant filed his motion for reconsideration nearly three weeks after entry of the district court's dismissal order, it was timely if construed as a Rule 60(b) motion. We find that any error committed by the district court in construing Appellant's motion as a Rule 59(e) motion rather than a Rule 60(b) motion was harmless. Because Appellant raised no new arguments and stated no grounds for relief and essentially asked the district court to "change its mind," we affirm the district court's order denying relief on Appellant's motion to reconsider. See United States v. Williams, 674 F.2d 310, 312-13 (4th Cir. 1982). 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.

AFFIRMED.