Anderson v. McKie

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-6134


JAMES E. ANDERSON,

                Plaintiff - Appellant,

          v.

BERNARD MCKIE, Warden; J. C. BROWN, Captain and Disciplinary
Hearing Officer; SAM LATTA; JOINER, Associate Warden; L. BAILEY,
Lieutenant; KEVIN MOORE, Counselor; MARY SIMPSON, Manager; PAUL
DENNIS,    Counselor; STEVE WOODWORK, Counselor; M. SHIVERS,
Sergeant; VAUGHN JACKSON, Major,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Margaret B. Seymour, District
Judge. (6:07-cv-01129-MBS)


Submitted:   March 25, 2010                 Decided:   April 8, 2010


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James E. Anderson, Appellant Pro Se.     William Henry Davidson,
II, Matthew Blaine Rosbrugh, DAVIDSON, MORRISON & LINDEMANN, PA,
Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  James E. Anderson appeals the district court’s order

denying his motion to alter or amend, in which Anderson sought

relief from the district court’s order granting summary judgment

to the Defendants in this 42 U.S.C. § 1983 (2006) action.                 The

district court found that Anderson’s motion was untimely under

Fed.       R.   Civ.   P.   59(e).   Because   Anderson   filed   the   motion

outside the ten-day time period of Rule 59(e), * the court should

have construed the motion as filed pursuant to Fed. R. Civ. P.

60(b).          See In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992).

Because Anderson’s motion merely addressed the merits of the

underlying § 1983 action and satisfied none of the criteria for

granting relief under Rule 60(b), we affirm.              See Heyman v. M.L.

Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997); Burnley, 988 F.2d at

3.     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




       *
       In December 2009, Rule 59(e) was amended to extend the
relevant time period to twenty-eight days. Anderson’s motion to
alter or amend was filed in 2008, and the ten-day time period of
former Rule 59(e) applies.



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