4 F3d 988 Vandevander v. S Propst

4 F.3d 988

Lee Hull VANDEVANDER, Plaintiff-Appellant,
Dona S. PROPST, Sheriff; G. W. White, Sergeant; R. D.
Gillespie; J. S. Tincher; State of West
Virginia, Defendants-Appellees.

No. 92-6587.

United States Court of Appeals,
Fourth Circuit.

Submitted: August 27, 1993.
Sept. 13, 1993.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. William M. Kidd, Senior District Judge. (CA-89-97-E-K)

Lee Hull Vandevander, Appellant Pro Se.

Harry Patton Waddell, Steptoe & Johnson, Clarksburg, West Virginia, for Appellees.



Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.



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Lee Hull Vandevander appeals from the district court's entry of judgment in favor of Defendants, following a jury trial, and denial of his "Post Motion"1 in Vandevander's 42 U.S.C. Sec. 1983 (1988) action.12 Our review of the record and the district court's opinion discloses no abuse of discretion and that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Vandevander v. Propst, No. CA-89-97-E-K (N.D.W. Va. May 15, 1992; June 9, 1992). 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.



This motion, questioning the correctness of the judgment and served within ten days of the entry of that judgment, is properly construed as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e). Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978)


By filing his notice of appeal prior to the disposition of his motion to alter or amend judgment, Vandevander invalidated his notice of appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). However, Vandevander's informal appellate brief may be construed as a timely notice of appeal. Smith v. Barry, 60 U.S.L.W. 4065 (U.S. 1992). Hence, we have considered both the denial of the Rule 59(e) motion and the underlying judgment