UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT DAVID BILES,
Plaintiff-Appellant,

v.

MARYLAND HOUSE OF CORRECTION;
RICHARD SINGLETARY; M. TUTHILL,
                                                                        No. 96-7326
Captain; ERIC WAYNE YELTY,
Officer; CHARLES QUEEN, Officer;
KEVIN WOULDRIDGE, Officer; ROBERT
BURKER, OFFICER; WILLIAM HICKS,
Lieutenant,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-94-1359-WN)

Submitted: November 12, 1996

Decided: June 1, 1998

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark L. Gitomer, CARDIN & GITOMER, P.A., Baltimore, Mary-
land, for Appellant. J. Joseph Curran, Jr., Attorney General of Mary-
land, Gloria Wilson Shelton, Assistant Attorney General, Baltimore,
Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robert D. Biles, a Maryland prisoner, appeals from the district
court's order granting summary judgment to defendants in his action
filed under 42 U.S.C. § 1983 (1994), in which he claimed that defen-
dants used excessive force against him. Biles' action was referred to
a magistrate judge under 28 U.S.C. § 636(b)(1)(B), (C) (1994). The
magistrate judge held an evidentiary hearing and recommended grant-
ing summary judgment for defendants. After consideration of Biles'
timely objections to the magistrate judge's report, the district court
adopted the magistrate judge's recommendation and granted summary
judgment for the defendants.

The district court's order states that the court considered the magis-
trate judge's report, reviewed Biles' objections, and conducted "a de
novo review of the entire matter." The order does not state whether
this de novo review included scrutiny of the evidence presented at the
hearing before the magistrate judge by study of a transcript or tape.
Biles argues that because the district judge's order does not clearly
state that he reviewed the transcript or tape, as he is required to do
under 28 U.S.C. § 636(b), we should presume that the judge did not
do this. Accordingly, Biles asserts that we must necessarily vacate the
district court's judgment and remand the case so that the district court
can clarify the basis for its decision. We reject Biles' argument.

When a party challenges a magistrate judge's findings of fact, as
the plaintiff did here, the district judge reviewing the magistrate
judge's determination must "make a de novo determination of those

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portions of the report or specified proposed findings or recommenda-
tions to which objection is made." 28 U.S.C.§ 636(b). We, along with
the majority of circuits, have interpreted § 636(b) to require that the
district court not only review any findings or recommendations that
the magistrate judge makes, but also that the court independently
review the transcript or tapes from the evidentiary hearings before the
magistrate judge. See Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir.
1985); Gee v. Estes, 829 F.2d 1005, 1009 (10th Cir. 1987) (collecting
cases). Accordingly, where the appellant demonstrates that the district
court did not or could not review either the transcript or tapes from
evidentiary hearings before the magistrate judge, remand is required
so that the district court can fulfill its statutory obligations. See
Orpiano v. Johnson, 687 F.2d 44, 46-48 (4th Cir. 1982) (district court
did not review the "evidence," and appellant demonstrated that the
district court did not have transcript when he ruled); see also Wimmer,
774 F.2d at 76 (appellee concedes that district court did not have tran-
script available).

By contrast, we have not squarely addressed the affect of § 636(b)
when an appellate court cannot definitively determine, from the
record or the district court's order, whether the district court in fact
conducted this independent review of the transcripts or tapes. How-
ever, both the Tenth and the Eighth Circuits have addressed this ques-
tion and have held that when the record does not indicate whether the
de novo review as required by § 636(b) was conducted, "such review,
including a review of the hearing transcript or tape, may be pre-
sumed." Jones v. Pillow, 47 F.3d 251, 253 (8th Cir. 1995); see also
Bratcher v. Bray-Doyle Indep. Sch. Dist., 8 F.3d 722, 724 (10th Cir.
1993) (where plaintiff questioned the district court's review under the
proper de novo standard, court presumed, absent affirmative evidence
to the contrary, that district court followed § 636(b)).

We agree that it is only fair to "presume that the district court knew
of these requirements" of § 636(b), Bratcher, 8 F.3d at 724, because
to do otherwise would necessarily "create a presumption that the dis-
trict judge acted improperly." Jones, 47 F.3d at 253 (quoting United
States v. Hamell, 931 F.2d 466, 468 (8th Cir. 1991)). Accordingly,
absent "affirmative evidence" demonstrating that the district court did
not properly review the magistrate judge's ruling pursuant to § 636(b)
we will presume it did. Id.

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Here, Biles has offered no affirmative evidence that the district
court did not consider the transcript and/or tapes of his evidentiary
hearing when it conducted a "de novo review of the entire matter."
Biles' only contention is that the district court, in denying his request
for a transcript of the evidentiary hearing at the court's expense, sug-
gests that the court did not review the transcript itself. This contention
is meritless. Simply because the district court decided it was unneces-
sary or wasteful to provide a transcript to Biles does not mean that it
was without a transcript or tape for its own review. Accordingly, the
district court's judgment is

AFFIRMED.

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