19 F.3d 1428
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
David FELTON, Plaintiff-Appellant,
v.
Michael BELL; Pat Taylor; Arthur Gurley; Lynn Johnson;
Sergeant Kennedy; Curtis Nord; Johnson; Lee
Futrell, Defendants-Appellees.
No. 93-7343.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 17, 1994.
Decided March 17, 1994.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, District Judge. (CA-93-419)
David Felton, appellant pro se.
William McBlief, North Carolina Department of Justice, Raleigh, NC, for appellees.
E.D.N.C.
VACATED AND REMANDED.
Before RUSSELL, MURNAGHAN and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:
Appellant appeals from the district court's order granting Appellees' motion for summary judgment. The district court, finding that Appellant had failed to file timely objections, adopted the magistrate judge's recommendation for entry of summary judgment without conducting a de novo review of the record. We find Appellant indeed filed timely objections, and vacate and remand the district court's decision for the requisite de novo review.
Notice to Appellant of the need to file timely objections to the magistrate judge's recommendation was dated November 12, 1993. Appellant's written objections were delivered to prison officials for mailing and, therefore, filed on December 2, 1993. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (applying "mailbox" rule of Houston v. Lack, 487 U.S. 266 (1988), to filing of objections to magistrate judge's recommendation), cert. denied, 493 U.S. 1059 (1990). Excluding intermediate Saturdays, Sundays, and legal holidays, Fed.R.Civ.P. 6(a), and adding three days for service by mail, Fed.R.Civ.P. 6(e), we find Appellant's objections were timely filed.
When timely and proper objections have been filed, a district court is required to conduct a de novo review of every portion of the magistrate judge's recommendation to which objections have been filed. 28 U.S.C.A. Sec. 636(b)(1) (West 1993); Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.1982). It is unclear from the district court's order whether a de novo review was indeed conducted. Accordingly, we vacate the decision below and remand for the district court to state that it conducted a de novo review if it previously did, or to conduct a de novo review of the magistrate judge's recommendation in light of Appellant's objections if it has not already done so.
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.