Perry Allen Washington v. Ken Donahue Ottie Adkins Bruce Roberson Georgeann Foster 84th District Court of Texas R. L. McFarland , 42 F.3d 1387 ( 1994 )

42 F.3d 1387

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Perry Allen WASHINGTON, Plaintiff Appellant,
v.
Ken DONAHUE; Ottie Adkins; Bruce Roberson; Georgeann
Foster; 84TH District Court Of Texas; R. L.
McFarland, Defendants Appellees.

No. 94-6961.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 26, 1994.
Decided: Dec. 12, 1994.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Charles H. Haden II, Chief District Judge. (CA-94-487-3)

Perry Allen Washington, pro Ss. Robert Carter Elkins, Laura L. Gray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, W VA, for appellees. Ken Donahue, Bruce Roberson, Georgeann Foster, R. L. McFarland, appellees.

S.D.W.Va.

AFFIRMED.

Before ERVIN, Chief Judge, and WILKINSON and HAMILTON, Circuit Judges.

PER CURIAM:

1

Appellant appeals from the district court's order denying relief without prejudice on his 42 U.S.C. Sec. 1983 (1988) complaint. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit.* Accordingly, we affirm on the reasoning of the district court. Washington v. Donahue, No. CA-94-487-3 (S.D.W. Va. July 29, 1994). 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

*

The district court should have granted Appellant's motion to amend his complaint because a party may amend a pleading once as a matter of right before a responsive pleading is filed. Fed.R.Civ.P. 15(a). Any error was harmless, however, because the claims would have been dismissed without prejudice for failure to exhaust state remedies had the motion to amend been granted. Cf. Foman v. Davis, 371 U.S. 178, 182 (1962) (no abuse of discretion where motion to amend was denied after service of responsive pleading when amendment would have been futile)