Diane S. Sherman v. Barry, 502 U.S. 244, 247-49 1992 holding that document filed within appeal period

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-2162
DIANE S. SHERMAN,
Plaintiff - Appellant,
versus
VERIZON VIRGINIA, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. F.B. Stillman, Magistrate Judge.
(CA-01-526-2)
Submitted: December 18, 2002 Decided: January 21, 2003
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Diane S. Sherman, Appellant Pro Se. Betty S.W. Graumlich, George
William Norris, Jr., MCSWEENEY & CRUMP, P.C., Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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1 This case was decided by a magistrate judge upon consent of
the parties under 28 U.S.C. § 636(c)(1) (2000).
2 While Sherman’s informal brief filed in this court states
that she is appealing from the magistrate judge’s order granting
summary judgment in favor of Verizon Virginia, Inc., her informal
brief was not filed within the appeal period set forth in Fed. R.
App. P. 4(a)(1), and, thus, cannot serve as a notice of appeal.
See Smith v. Barry, 502 U.S. 244, 247-49 (1992) (holding that
document filed within appeal period and containing information
required by Fed. R. App. P. 3(c), is functional equivalent of
notice of appeal).
2
PER CURIAM:
Diane S. Sherman appeals the magistrate judge’s orders1
denying her motion for an opportunity to be heard and her motion
filed under Fed. R. Civ. P. 60(b)(3), and denying her leave to
proceed on appeal in forma pauperis. 2 With regard to Sherman’s
Rule 60(b)(3) motion and motion for an opportunity to be heard, we
have reviewed the record and find no reversible error. Accordingly,
we affirm this portion of the appeal on the reasoning of the
district court. See Sherman v. Verizon Virginia, Inc., No. CA-01-
526-2 (E.D. Va. Sept. 24, 2002).
Sherman also appeals the magistrate judge’s order denying her
leave to proceed in forma pauperis. We dismiss this portion of the
appeal as moot. See Fed. R. App. P. 24; United States v. Boutwell,
896 F.2d 884, 890 (5th Cir. 1990). Sherman has filed in this court
a motion to proceed on appeal in forma pauperis, which contains
information that was not presented to the magistrate judge. We
grant Sherman’s motion to proceed on appeal in forma pauperis.

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3
Finally, we deny Sherman’s motions for appointment of counsel
and to correct the record, deny her motion to consolidate with
Appeal No. 02-2170, and deny her motion to expedite consideration
of this appeal as moot. We deny Verizon Virginia, Inc.’s motion to
dismiss the appeal and 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 PART; DISMISSED IN PART

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