UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES ALLEN,
Plaintiff-Appellant,

v.

EDWARD MURRAY; RICHARD YOUNG;
ROBERT J. BECK; RONALD LEE ROSE,
                                                    No. 95-6818
Correctional Officer, Individually
and in Personal Capacity; R. S.
JACKSON, Major, Individually and in
Personal Capacity,
Defendants-Appellees.

CHARLES ALLEN,
Plaintiff-Appellant,

v.

EDWARD MURRAY; RICHARD YOUNG;
ROBERT J. BECK; RONALD LEE ROSE,
                                                    No. 95-6826
Correctional Officer, Individually
and in Personal Capacity; R. S.
JACKSON, Major, Individually and in
Personal Capacity,
Defendants-Appellees.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CA-93-193-R, CA-93-308-R)

Submitted: January 23, 1996

Decided: March 6, 1996
Before WILKINS and NIEMEYER, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

No. 95-6818 vacated and remanded and No. 95-6826 affirmed by
unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles Allen, Appellant Pro Se. Pamela Anne Sargent, Assistant
Attorney General, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In appeal No. 95-6818, Charles Allen, a Virginia prisoner, appeals
from the district court's order granting judgment for the Defendants
in his action filed under 42 U.S.C. § 1983 (1988), in which he
claimed that the Defendants used excessive force against him when
they transported him to the hospital for treatment of an existing back
injury. The magistrate judge held an evidentiary hearing and recom-
mended granting judgment for the Defendants. After consideration of
Allen's timely objections to the magistrate judge's report, the district
court adopted the magistrate judge's recommendation and granted
judgment for the Defendants.

We are unable to tell from the district court's order adopting the
magistrate judge's recommendation whether proper de novo review of
the record was conducted. Although the order states that the court "re-
viewed the file, the [m]agistrate [j]udge's report, and [Allen's] objec-

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tion to that report," the order does not indicate whether this included
de novo review of the evidence presented at the hearing by reviewing
a transcript or tape of the hearing. Moreover, the record before us
includes neither a tape recording nor a transcript of the evidentiary
hearing.

When a magistrate judge makes factual findings after an evidenti-
ary hearing, and a party files specific objections challenging those
findings, as was done here, de novo review of the transcript or tape
of the hearing must be conducted. 28 U.S.C.A. § 636(b)(1)(B), (C)
(West 1993); Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
Reliance on the magistrate judge's summary of the evidence is insuf-
ficient in this regard. "`[A]n appellate court must be satisfied that a
district judge has exercised his non-delegable authority by consider-
ing the actual testimony, and not merely by reviewing the magis-
trate's report and recommendations.'" Wimmer v. Cook, 774 F.2d 68,
76 (4th Cir. 1985) (quoting United States v. Elsoffer, 644 F.2d 357,
359 (5th Cir. 1981)); Orpiano, 687 F.2d at 48 n.1. Thus, failure to
review the transcript or tapes of the hearing in this case would be
reversible error. Wimmer, 774 F.2d at 76.

Because we cannot conclude that a transcript or tapes of the evi-
dentiary hearing were before the district court, we vacate the district
court's order in appeal No. 95-6818 and remand this case for further
proceedings. If the district court did undertake a de novo review of
Allen's objections by reviewing the transcript or listening to the tapes,
then it should amend its order to reflect this fact. If it did not, it
should do so.

In appeal No. 95-6826, Allen appeals from the district court's order
denying his motion for appointment of counsel, which the district
court also treated as a motion filed under Fed. R. Civ. P. 59(e). We
have reviewed the record and the district court's opinion and find no
abuse of discretion. Accordingly, we affirm on the reasoning of the
district court. Allen v. Murray, No. CA-93-193-R (W.D. Va. May 8,
1995).

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

No. 95-6818 - VACATED AND REMANDED

No. 95-6826 - AFFIRMED

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