Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.james Aaron Hayes, Plaintiff-appellant, v. John Grimmer, Deputy; Judy Hicks, Chief Jail, Defendants-appellees, 103 F.3d 117 (4th Cir. 1996)

James Aaron Hayes, a North Carolina prisoner, appeals from the district court's order adopting the magistrate judge's recommendation to grant Appellees' motion for summary judgment. Although we express no opinion as to the ultimate success of Hayes' claim, we vacate the district court's order and remand for further proceedings.

Hayes noted specific, timely objections to the magistrate judge's report and recommendation that the motion for summary judgment be granted. The district court was required to review the disputed issues de novo. 28 U.S.C. § 636(b) (1) (1994); see Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985); Orpiano v. Johnson, 687 F.2d 44, 48 n. 1 (4th Cir. 1982). Although the court stated that it reviewed all of the evidence, affidavits, and records in reaching its decision, it appears that the court inadvertently failed to consider Hayes' sworn responses to the motion for summary judgment and magistrate judge's report, both of which contradicted the Appellees' affidavits.

Accordingly, we vacate the judgment and remand for further proceedings. We deny Hayes' motion to appoint counsel and 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.