UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGEL ST. JOHN,
Plaintiff-Appellant,

v.
                                                                    No. 97-6371
MICHAEL MOORE, Director; COLIE L.
RUSHTON, Warden; SERGEANT
SPROUSE; LIBRARIAN AUSTIN,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
G. Ross Anderson, Jr., District Judge.
(CA-96-784-13BE)

Submitted: January 20, 1998

Decided: February 23, 1998

Before WIDENER and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Virgel St. John, Appellant Pro Se. Ronald Keith Wray, II, GIBBES,
GALLIVAN, WHITE & BOYD, P.A., Greenville, South Carolina,
for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Virgel St. John appeals from a district court order adopting a mag-
istrate judge's recommendation to dismiss under Fed. R. Civ. P.
12(b)(6) his action filed under 42 U.S.C. § 1983 (1994). Generally,
St. John's complaint alleged that prison officials improperly placed
him in administrative segregation for twenty-five days without a hear-
ing, subjected him to triple celling in a cell designed for a single per-
son, forcing him to sleep on a mattress on the floor for several nights,
and denied him access to various resources, such as an attorney, legal
assistant, telephone, legal materials, a typewriter, and a photocopier.
These deprivations, he asserted, effectively denied him access to the
courts and caused him to lose a civil action.

After the magistrate judge issued a report recommending that the
court grant the motion to dismiss, St. John moved to amend his com-
plaint. In adopting the magistrate judge's report and recommendation,
the district court denied the motion to amend, finding that it would be
futile because the claims raised in the amended complaint had already
been considered and ruled upon by the court.

St. John correctly contends on appeal that he had the right once to
amend his complaint, without leave of court, prior to the filing of a
responsive pleading by the Defendants. See Domino Sugar Corp. v.
Sugar Workers Local Union 352, 10 F.3d 1064, 1068 n.1 (4th Cir.
1993). Defendants filed a motion to dismiss prior to St. John's motion
to amend, but a motion to dismiss is not a responsive pleading under
Fed. R. Civ. P. 15(a). Id. Moreover, we note that the cases cited in
the district court's opinion, Foman v. Davis, 371 U.S. 178 (1962), and
Sachs v. Snider, 631 F.2d 350 (4th Cir. 1980), do not authorize the
decision to deny St. John's motion to amend. Foman addressed situa-
tions where leave to amend is a matter of the district court's discre-
tion. As we have stated, because the defendants had not filed a

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responsive pleading, entitlement to amend was not a matter of the
court's discretion.

The court's reliance on Sachs is also misplaced. In that case, even
though the defendants never filed a responsive pleading, we found
that the district court properly denied the appellant's motion to amend
his complaint, because it was not filed until after the district court dis-
missed the complaint. In this case, St. John moved to amend after the
magistrate judge's recommendation, but before the district court
issued its decision. Because it is bound to conduct a de novo review
of the magistrate judge's report, the district court must consider
claims raised before its decision even if those claims were not raised
before the magistrate judge. See United States v. George, 971 F.2d
1113, 1118 (4th Cir. 1992).

Finally, the amended complaint asserted new substantive allega-
tions and did not merely restate the allegations in the original com-
plaint. First, it raised two issues not addressed by the magistrate
judge: a claim that his placement in segregation and subjection to tri-
ple celling was the product of retaliation for his efforts to assist other
inmates with their litigation activities, and a claim that his segregation
resulted in the loss of opportunity, allegedly guaranteed by state law,
to earn work credits against his sentence. Second, the amended com-
plaint included new allegations that could alter the analysis of his
claim that he was denied access to the courts. The magistrate judge
recommended denying the latter claim primarily on the basis that
while St. John's access to various resources needed to pursue his legal
claims may have been somewhat restricted, his allegations failed to
demonstrate that he lacked alternative avenues for pursuing his
claims. St. John's amended complaint, however, elaborated on his
earlier claims and alleged that he had no access at all to other
resources such as the law library, his attorney, legal materials, etc.

Accordingly, the order of the district court dismissing this action
is vacated, and the case is remanded for further consideration consis-
tent with this opinion. 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.

VACATED AND REMANDED

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