                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WINFRED GIBSON,                          
                  Plaintiff-Appellant,
                  v.                              No. 00-6911
HAROLD LOWERY, Attorney,
              Defendant-Appellee.
                                         
           Appeal from the United States District Court
          for the District of South Carolina, at Anderson.
               Henry M. Herlong, Jr., District Judge.
                           (CA-00-1250-8)

                   Submitted: November 16, 2000

                       Decided: December 6, 2000

      Before WILKINS and TRAXLER, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                              COUNSEL

Winfred Gibson, Appellant Pro Se.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                          GIBSON v. LOWERY
                              OPINION

PER CURIAM:

   Winfred Gibson appeals the dismissal of his complaint filed under
42 U.S.C.A. § 1983 (West Supp. 2000). On May 2, 2000, the magis-
trate judge issued a report recommending that the case be dismissed.
Attached to the magistrate judge’s report and recommendation was a
notice stating that objections were to be filed within ten days. Pursu-
ant to Fed. R. Civ. P. 6(a), 6(e), and 72(b), Gibson’s objections were
due on May 19.

   On June 15, 2000, the district court dismissed Gibson’s action,
adopting the magistrate judge’s recommendation and stating that Gib-
son failed to object to the report. The district court did not conduct
a de novo review. Gibson filed his timely notice of appeal on June 29.
In his notice of appeal, Gibson states that he did not receive the mag-
istrate judge’s report and recommendation. Gibson attached an affida-
vit to his notice of appeal that he did not receive the magistrate
judge’s report and recommendation, and that he did not have an
opportunity to file objections to it.

   A litigant who fails to object in writing within ten days to a magis-
trate judge’s proposed findings of fact and conclusions of law is not
entitled to de novo review of the magistrate judge’s determinations,
28 U.S.C.A. § 636(b)(1)(West 1993), and is barred from contesting
these determinations on appeal. Wright v. Collins, 766 F.2d 841, 845-
46 (4th Cir. 1985). However, the waiver applied for failure to file
objections is a prudential rule, not a jurisdictional requirement. United
States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984). Consequently,
when a litigant is proceeding pro se, this court has held that he must
be given fair notice of the consequences of failing to object before a
procedural default will result. Wright, 766 F.2d at 846.

   When objections have been filed, de novo review of a magistrate
judge’s determinations by an Article III judge is not only required by
statute, Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982), but
is indispensable to the constitutionality of the Magistrate Judge’s Act.
United States v. Raddatz, 447 U.S. 667, 681-82 (1980). If Gibson’s
contentions are true, he did not receive timely notice of the conse-
                          GIBSON v. LOWERY                          3
quences of failing to object to the magistrate judge’s report. Because
delays in delivery of mail—over which prisoners have no control—
can justify the untimely filing of objections, Grandison v. Moore, 786
F.2d 146, 149 (3d Cir. 1986), Gibson should be permitted to prove in
the district court that he did not receive proper notice.

   Accordingly, we vacate the order of the district court and remand
so that the district court can determine whether Gibson timely
received the report and recommendation. If the district court deter-
mines that the report was not timely received by Gibson, the court
should permit Gibson to file objections and then conduct the requisite
review. Should the court find that Gibson did receive proper notice,
it should reinstate its dismissal of the § 1983 complaint. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                                      VACATED AND REMANDED
