UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 magistrate 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 hearing, subjected him to triple celling in a cell designed for a single person, 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 complaint. 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 situations where leave to amend is a matter of the district court's discretion. 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 dismissed 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 allegations and did not merely restate the allegations in the original complaint. First, it raised two issues not addressed by the magistrate

judge: a claim that his placement in segregation and subjection to triple 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 complaint 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 consistent 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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