Washington v. Mack Trucks Inc

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-1399

CARMELL WASHINGTON,

Plaintiff - Appellant,

versus

MACK TRUCKS, INCORPORATED,

Defendant - Appellee,

and

UNITED AUTO WORKERS; INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL; UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS,

Defendants.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., Senior District Judge. (CA-00-3312-10BC)

Submitted: July 29, 2004 Decided: August 3, 2004

Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion. Carmell Washington, Appellant Pro Se. Henry Scarborough Knight, Jr., CONSTANGY, BROOKS & SMITH, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

Carmell Washington appeals from the district court's

order adopting the recommendation of the magistrate judge and

granting summary judgment in favor of Mack Truck, Inc. (“Mack”),

and its orders denying Washington’s motions to amend his complaint,

for a continuance, and to admit affidavits. Washington alleged

that his employment with Mack was terminated because of his race in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e-2000e-17 (2000), and in retaliation for filing

charges of discrimination against Mack. Our review of the record

and the district court's opinions disclose that this appeal is

without merit.

We find no abuse of discretion in the district court’s

denial of Washington’s motion to amend his complaint, given that

Washington previously had filed three complaints and further

amendment would have prejudiced Mack through undue delay. See

Foman v. Davis, 371 U.S. 178, 182 (1962); Franks v. Ross, 313 F.3d

184, 192 (4th Cir. 2002). Nor do we find abuse of discretion in

the district court’s denial of Washington’s request to admit

affidavits into the record, considering the court previously had

granted Washington two extensions of time to file affidavits to

counter summary judgment, and his request was made after the

magistrate judge had rendered his recommendation for disposition of

the case. We likewise find no abuse of discretion in the district

- 3 - court’s refusal to grant Washington a continuance of his case,

given the posture of the case at the time he made his request.

Washington also asserts error in the district court’s

adverse grant of summary judgment. However, Washington failed to

timely file objections to the magistrate judge’s recommendation,

despite being given notice that the failure to do so could waive

appellate review of a district court order based upon the

recommendation. See Wright v. Collins, 766 F.2d 841, 845-46 (4th

Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985).

Washington has waived appellate review of the district court’s

adverse grant of summary judgment by failing to file objections

after receiving proper notice.

Accordingly, we affirm the district court’s orders

denying Washington’s motions to amend his complaint, to file

affidavits, and for a continuance, and further affirm the district

court’s order granting Mack’s summary judgment motion. 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

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