                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 00-1334
                                 ___________

Reginald R. Early,                      *
                                        *
            Appellant,                  *
                                        *
      v.                                *
                                        *
John Lowe, Assistant Warden, East       *
Arkansas Regional Unit, Arkansas        *
Department of Correction (originally)   *
sued as J.E. Lowe); Stan Davenport,     *
Sgt., East Arkansas Regional Unit,      *
Arkansas Department of Correction       *   Appeal from the United States
(originally sued as Mr. Davenport);     *   District Court for the
Stevie Valentine, Sgt., East            *   Eastern District of Arkansas.
Arkansas Regional Unit, Arkansas        *
Department of Correction (originally    *         [UNPUBLISHED]
sued as Mr. Valentine); Maurice         *
Williams, Captain, East Arkansas        *
Regional Unit, Arkansas Department      *
of Correction (originally sued as       *
Mr. Williams); Jonathan Warner, Sgt.,   *
East Arkansas Regional Unit,            *
Arkansas Department of Correction       *
(originally sued as J.D. Warner);       *
Donaldson, Mr., Sgt., East Arkansas     *
Regional Unit, Arkansas Department      *
of Correction; Scott McCall, CO-1,      *
East Arkansas Regional Unit, Arkansas   *
Department of Correction (originally    *
sued as Mr. McCall); Ricky Thorne,      *
Sgt., East Arkansas Regional Unit,      *
Arkansas Department of Correction       *
(originally sued as Sgt. Thorne);       *
Vergerl, Mr., Sgt., East Arkansas       *
Regional Unit, Arkansas Department      *
of Correction; Brady Jefferson, CO-1,   *
East Arkansas Regional Unit, Arkansas   *
Department of Correction (originally    *
sued as Mr. Jefferson); Marvin Evans,   *
Warden, East Arkansas Regional Unit,    *
Arkansas Department of Correction       *
(originally sued as M. Evans); G. David *
Guntharp, Deputy Director, Arkansas     *
Department of Correction (originally    *
sued as G. David Gunthrop),             *
                                        *
             Appellees.                 *
                                   ___________

                          Submitted: October 6, 2000
                              Filed: October 17, 2000
                                  ___________

Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                         ___________

PER CURIAM.

       Reginald R. Early, an Arkansas inmate, appeals the District Court’s dismissal
of his 42 U.S.C. § 1983 action following an evidentiary hearing. Early filed a pro se
complaint claiming that several defendants, all Arkansas Department of Correction
employees, used excessive force in removing him from his cell. We remand to the
District Court for the reasons discussed below.




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        During the evidentiary hearing, Early testified that when correctional officers
arrived to move him from his cell to isolation, he told them he was not going. One
officer entered Early’s cell wearing riot gear and after Early refused to submit to
handcuffing, the officer deployed two stinger grenades that sprayed rubber pellets.
Thirty minutes later, this officer stood in the doorway of Early’s cell, and twice
discharged a riot gun1 at Early. Four officers then entered Early’s cell, wrestled him
to the floor, and placed him in handcuffs and leg irons. Although Early was not saying
anything or resisting, the officers dragged him into the hall, then carried him to another
location. The handcuffs and leg irons were too tight and caused injuries to Early.

       Following Early’s testimony, the State and the magistrate judge discussed a
videotape of the incident, which the State had provided prior to the hearing. During
discovery, Early had requested a copy of the videotape, but the State had asserted that
it was unavailable because it had been recorded over.

       The magistrate judge filed a detailed report indicating that he had viewed the
videotape after the hearing and had admitted it as an exhibit. Among other things, the
report stated that the tape showed that canned tear gas was “forced” into Early’s cell
several times with absolutely no effect on his demeanor or physical condition. The
magistrate judge recommended dismissing Early’s action, concluding that (1) the force
used on Early was to achieve the legitimate purpose of transferring him from one cell
to another and quelling a disturbance; (2) the need for the force applied was in
proportion to the force necessary to end the disturbance; and (3) the defendants did not
act maliciously and sadistically for the very purpose of causing Early harm. Early
timely objected to this report, denying that the admitted videotape was of the incident
involving him (as no chemical agent was used on him), and challenging the magistrate
judge’s findings as they related to the tape. He argued that the force applied was not


      1
          According to Early, this gun discharges a four-and-one-half-inch piece of
rubber.
                                           -3-
in proportion to the force necessary to end a disturbance because there was no
disturbance. The District Court adopted the magistrate judge’s report, stating that it
had carefully reviewed the “Findings and Recommendations, and the timely objections
received thereto,” and dismissed Early’s complaint. Early v .Lowe, No. H-C-99-40
(E.D. Ark. Nov. 18, 1999).

        Under 28 U.S.C. § 636(b)(1) (1994), a district court must make a de novo
determination of those portions of a magistrate judge’s report and recommendation “to
which objection is made.” See Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995)
(holding that liberally construed, a pro se prisoner's objections were sufficiently specific
to require de novo review where he recited portions of report, and set forth what he
believed to be correct facts or holdings). Although we may presume de novo review
was conducted when the record is silent on the matter, the presumption is inappropriate
if there is affirmative evidence showing that de novo review was not performed. See
Jones v. Pillow, 47 F.3d 251, 252-53 (8th Cir. 1995). The record before us does not
indicate that the District Court viewed the videotape upon which the magistrate judge
relied, and there is no indication the tape was available to the Court. Further, the
District Court stated only that it had considered the report and Early’s objections, and
did not mention listening to an audiotape of the hearing. In these circumstances, the
presumption has been negated. Thus, we will not address the merits of the case at this
time. See Hudson, 46 F.3d at 786. See also Nabors v. United States, 929 F.2d 354,
355 (8th Cir. 1990) (per curiam).

     We reverse the judgment and remand the case so that the District Court may
conduct the required de novo review.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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