UNPUBLISHED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unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 recommended 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 "reviewed 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 evidentiary 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 insufficient in this regard. "`[A]n appellate court must be satisfied that a

district judge has exercised his non-delegable authority by considering the actual testimony, and not merely by reviewing the magistrate'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 evidentiary 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 contentions 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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