Douglas C. Bain, Plaintiff-appellant, v. Captain E. Watkins, Lieutenant Griffin, Sergeant W.l.edwards, Sergeant J.l. Little, Officer Klutzz,francis Esposito, Nurse, Defendants-appellees, 833 F.2d 1004 (4th Cir. 1987)

Douglas C. Bain, a North Carolina inmate, filed this pro se action against various prison officials pursuant to 42 U.S.C. § 1983. Bain sought punitive and compensatory damages allegedly due to the defendants' indifference to Bain's medical needs and failure to relieve Bain from work detail, and for a verbal threat allegedly levied against Bain.

The case was referred to a magistrate for report and recommendation pursuant to 28 U.S.C. § 636(b) (1). In a report and recommendation entered March 16, 1987, the magistrate recommended that a motion to dismiss be granted as to two of the defendants and that a motion for summary judgment be granted as to the remaining defendants.

In a letter filed with the report, Bain was notified that under Fed. R. Civ. P. 72(b) he had ten days from March 16th to serve and file written objections to the magistrate's report. On March 25, 1987, Bain filed a notice of appeal from the magistrate's report.

A panel of this Court dismissed Bain's appeal for lack of jurisdiction. Noting that the record contained no "clear and unambiguous statement" indicating that the parties had consented to the exercise of plenary jurisdiction by the magistrate, we instructed Bain that he had to obtain review of the magistrate's recommendation in the district court before he could appeal to this Court. Bain v. Watkins, No. 87-7089 (4th Cir. July 15, 1987) (unpublished).

On July 20, 1987, Bain filed a "Notice of review of magistrate's recommendation of summary judgment" in the district court. However, the district court, ruling that Bain had failed to file timely objections to the magistrate's report, entered an order refusing to conduct de novo review and dismissing the case in accordance with the magistrate's recommendations. Bain appeals.

An indigent prisoner's pro se pleadings are entitled to a liberal construction. Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert. denied, 439 U.S. 970 (1978). Further, Bain attempted to comply with Fed. R. Civ. P. 72(b) by filing a notice of appeal and by filing an objection to the report after this Court dismissed his appeal for lack of jurisdiction. We therefore construe Bain's notice of appeal as an objection to the magistrate's report. Since the notice of appeal was served and filed within the ten day period for serving and filing objections to a magistrate's report under Fed. R. Civ. P. 72(b), the district court erred in failing to conduct de novo review. We therefore vacate the judgment of the district court and remand the case with instructions to conduct a de novo review pursuant to 28 U.S.C. § 636(b) (1).

We dispense with oral argument because the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.

VACATED AND REMANDED.