dissenting.
I respectfully dissent. My disagreement with the majority on the appropriate legal precepts stems, in part, from their reliance on an incomplete version of the facts. Without being too repetitious, I deem it necessary to set forth a complete version.
I
In his amended complaint, Carter alleged that three of the defendants, Fuiek, Pyles and Levi, wrongfully beat him on September 22, 1977, during a “shakedown” of Carter’s cell in Huntingdon’s maximum security unit. Carter was placed in the maximum security unit, the Behavioral Adjustment Unit (BAU), because of his participation in an attempted escape which had involved the holding of several guards hostage, one of whom was seriously injured. Carter also seeks to hold the Superintendent of the institution, Hewitt, liable in his official capacity as supervisor of these correctional officers.
The district court referred this matter to the Magistrate “[t]o hear, submit, and file proposed findings of fact and recommendations for the disposition of the matter with the court . . . 28 U.S.C. § 636(b)(1)(B) (Supp.1979).
The defendants moved for dismissal or in the alternative, summary judgment, and filed supporting affidavits. Pursuant to Rule 56, Fed.R.Civ.P. 56, the Magistrate advised plaintiff to file affidavits that demonstrated the inappropriateness of summary judgment. A hearing was held on July 24, 1978, at which time, plaintiff presented three witnesses, all of whom were fellow inmates of Carter’s.
The procedural posture of this case is not a model of clarity. The Magistrate recommended to the district court that (1) defendant Hewitt’s motion for summary judgment be granted on the ground that even assuming the allegations to be true, no legal claim existed because it was not alleged that Hewitt directed any beating or that the beating was a result of his actions; and (2) that defendants Fuiek, Pyles and Levi’s motion to dismiss be granted based on his proposed findings of fact which correlated with the defendants’ testimony. However, in adopting the Magistrate’s report, the court specifically disposed of the case under Fed.R.Civ.P. 56, rather than under Fed.R.Civ.P. 12 or Fed.R.Civ.P. 53(e)(2). Carter v. Hewitt, Civ.No. 77-1168, slip op. at 2 n. 1, n. 1 (Oct. 13, 1978). Such a disposition, at least with respect to Fuiek, Pyles and Levi, is inconsistent with the Magistrate’s report. It is apparent that there are material facts at issue with respect to them, and thus the three guard defendants are not entitled to summary judgment as a matter of law.1 Moreover, it is quite clear that the district court never saw a transcript of the testimony to which the majority refers, because that transcript was not prepared from an electromechanical recording until this court ordered it after the notice of appeal was filed, nor is there any affirmative evidence in the record that the district court listened to the recording. In any event, the order was a form of final judgment, reviewable by this court under 28 U.S.C. § 1291 (1976). This court granted Carter’s motions for leave to proceed in forma pauperis and for appointment of counsel.
II
Because this appeal presents an eviden-tiary question, a brief review of the testimony is necessary. Carter’s witnesses testified to having heard the defendant guards beating him, although they never actually saw anyone strike Carter. There was testimony to the effect that the visit was a “shakedown” — a search of Carter and his cell; that Carter asked for medical aid; and that Carter was threatened with incarceration in the glass cage (cells surrounded by a glass wall for additional scrutiny) if he sought medical advice. One witness, McCoy testified that he heard Carter say he *975had a bloody mouth and another witness, Castle, testified that when he first saw Carter 36 hours later, Carter’s face was swollen. There was contradictory testimony by plaintiff’s witnesses as to whether the sounds of the beating could be identified as a beating by fists or by a baton or flashlight.
Carter testified that the defendant guards ordered him outside of his cell for a shakedown and that once out of his cell, they began to beat him. He testified that he was struck by Pyles’ baton and fists seven or eight times in the ribs, and that defendant Levi hit him with his baton 20-25 times on his collar bone. He stated that when he attempted to grab Levi’s baton, Levi kicked him in the mouth, thereby causing his mouth to bleed. Carter also stated that Fuiek struck him three or four times with his flashlight in the back of the head. He reiterated that he was threatened with the glass cage if he asked for medical attention. He stated that his only noticeable injury was his bloody lip because his clothes covered all his other injuries.
All three defendant guards testified that they had entered Carter’s cell for a routine inspection and that no beating was administered to Carter on that day. Instead, each stated that when Carter came out of his cell he grabbed Levi’s baton and a pulling contest ensued. Pyle testified that he pulled Carter off Levi, but never struck him. Upon hearing the commotion, Fuiek testified that he came out of the cell and threatened to put his 18" flashlight through Carter’s face if Carter did not let go of Levi’s baton. At that point, Carter released his hold on the baton. The guards stated that they did not file an “incident” report because no blows were struck and it was not so extraordinary as to require such a report. All three deny striking Carter and don’t recall Carter asking for a doctor.
Defendant Hewitt, the superintendent, testified that there is a procedure for filing inmate complaints and Carter had never filed one. Hewitt recalled that Carter had often mentioned alleged harassment by staff and a lack of medical attention. However, Hewitt did not recall that Carter made any specific claims about a beating on September 22, 1977, although Carter claims he did so inform Hewitt. Moreover, Hewitt stated that he generally has directed the guards not to use force until absolutely necessary and he has no knowledge that any civil or criminal actions have ever been successfully concluded against defendants.
Morgan, the infirmary supervisor, testified that on the day in question he conducted his usual daily inspection of the BAU.2 He stated that Carter had not filed any “sick reports” and that although he cannot recall whether or not he spoke to Carter that day, he did not view any bruises or injuries on any subsequent days, and that no fellow inmates informed him that Carter was in need of treatment. This testimony is not inconsistent with Carter’s version of his attempt to file a report and that most of his injuries were covered by clothing.
The Magistrate and district court essentially were presented with the question of whether Carter did or did not suffer an unlawful beating on September 22, 1977. There was certainly ample testimony for the Magistrate to make such a factual determination. However, on the basis of the letter that Carter had written, the focus of the case incorrectly shifted to the issue of whether or not Carter had fabricated this brutality complaint.3 Carter’s contention is that admission in evidence of this prejudicial letter was reversible error. I agree.
Ill
On cross-examination, Carter was shown a letter that he had written to a fellow prisoner on March 15, 1978. The Magis*976trate made a specific finding of fact that the letter was written on March 15, 1978, six months after the alleged beating. The majority opinion implies that the date is a disputed issue by stating that Carter objected, “claiming that the letter had been written six months after the alleged beating. . The letter, which was undated, generally described to its unidentified recipient how to file a complaint charging prison guard brutality.” Maj. Op. at 964 (emphasis added). The fact that the letter was written six months after this suit was commenced is important to an analysis under any of the three rules on which the majority relies to justify its admission. Moreover, the majority’s reference to an “unidentified prisoner” is incorrect. The prisoner to whom the letter was written was present in the courtroom, and Carter asked if he could call him as a witness. The Magistrate denied the request, and the prisoner, who had been identified by name, was never called as a witness even after the letter had been admitted.
Carter, who was without counsel, objected to the admission of the letter. The Magistrate reserved decision on its admissibility, but instructed Carter to read it aloud from the witness stand. Carter testified that he had written the letter because a fellow prisoner had been abused and needed advice on how to proceed. He denied that he was recommending that the prisoner file a false complaint.
The Magistrate determined that whether Carter had been beaten was a matter of credibility and resolved the credibility issue against him. The Magistrate found that the letter was an attempt by Carter “to have his fellow inmate fabricate an alleged beating, similar to the one that [Carter] has alleged here. . . ” App. 15a. Although the Magistrate listed other reasons for rejecting Carter’s story, it is evident that the letter was a crucial part of determining Carter’s credibility. The Magistrate held that the letter was relevant to Carter’s modus operandi and credibility, without stating which evidentiary rules might be applicable.
The district court, in adopting the Magistrate’s report, also relied heavily on the letter and quoted the following portion of it as highly relevant to the issue of credibility and falsification:
This is a set up my brothers — compile complaints to be used for bullshit courts, possibly news media, and a radio program in Pittsburgh & W.D.A.S. down Philly. We want to establish a pattern of barbaric brutal harassment and turn it on these chumps to the max.
App. 20a. The district court cited no additional reasons for the letter’s admissibility. Although tape recordings were made of the Magistrate’s hearing, as noted above they were not transcribed until the case arrived here, and there is no indication that the district judge listened to them. In light of the reliance by both the district court and the Magistrate on this letter, I cannot accept the appellees’ contention that if its admission was legal error, that such error was harmless. Moreover, it is significant that appellee’s brief does not contend that the letter was properly admitted. Instead, they state that “[although an argument can be made that it was proper for the district court to admit the challenged letter, the dispositive issue of this appeal is whether the district court, even if it erroneously admitted the letter, committed reversible error.”4 The majority does not accept the harmless error contention, but it has constructed for the appellees several theories of admissibility which those parties never urged. „ Indeed, referring to the appellees’ “questionable litigation strategy,” they advocate several theories of admissibility on behalf of those parties. In doing so, however, they disregard completely the obvious explanation for the appellees’ litigation strategy. That explanation is that the record discloses the exclusion of evidence bearing critically on the probative value of the letter for any of the purposes for which the majority deems it admissible.
The majority construes the letter as admissible (1) because it is an admission of a *977conspiracy to cause the filing of false charges, (2) because if it evidences such a conspiracy it bears upon the credibility of Carter’s testimony as to the September 22, 1977 events, and (3) because if it is evidence of such a conspiracy it is evidence that the complaint about the September 22, 1977 events was part of a plan or scheme, or suggests a modus operandi. I do not find it necessary to review in detail the labored effort by which the majority manages to relate a letter written in March 1978 to an event which transpired in September 1977. I merely note that if the connection was self evident establishing it would not require so many words. If the letter said
“I am a member of a conspiracy to file false charges, and the charge filed in September 1977 was made pursuant to that conspiracy”,
it would be admissible on all the grounds on which the majority relies. But the letter does not read that way. Rather the majority interprets it as if it was so intended and so understood. It instructs another as to the manner of making a complaint. Carter contends that it was addressed to an inmate who had suffered a beating, as the result of an inquiry from that inmate with respect to legal redress. If the beating and the inquiry took place, then the letter simply cannot have the relevance which the majority attributes to it for any of the three purposes relied upon.
The record is clear that the Magistrate, before he ruled on admissibility, excluded testimony by the addressee which, according to Carter, would have explained the true context of the letter. After the case was closed the Magistrate admitted the missive, and Carter never was given the opportunity to put in evidence of the circumstances surrounding its preparation. We do not know whether the Magistrate, had he heard the testimony of the addressee, who was available in court, would have given the letter an innocent connotation. We do not know that the district court, had the addressee’s testimony been recorded and had he listened to it, would have done likewise. But apparently the majority is convinced that, even if the addressee had fully confirmed Carter’s innocent explanation, they would not credit that explanation or his version of the September 22, 1977 events.
Although I do not discuss in detail the several theories on which the majority finds the letter admissible, my silence should not be construed as acquiescence. The discussion of Fed.R.Evid. 608 is particularly disturbing, especially considering that its author joined in the disposition of the Rule 608 issue in United States v. Herman, 589 F.2d 1191, 1196-98 (3d Cir. 1978). Suffice it to observe that on any theory of admissibility the court would be required before ruling to listen, at least, to evidence which might give meaning from the surrounding circumstances to an inherently ambiguous document.
I would affirm the judgment appealed from insofar as it grants summary judgment in favor of defendant Hewitt, since there is no evidence connecting him to the alleged beating. I would reverse and remand insofar as it dismisses the complaint against Fuiek, Pyles and Levi.
. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
. Apparently the inmates have not been informed of the medical procedure because they disagreed as to whether the infirmary supervisor visits the BAU every morning to administer medical care or only visits on an irregular basis to respond to sick reports specifically filed by inmates.
. The letter is quoted in full in the majority’s opinion. See Maj. Op. at 964 — 965 n. 1.
. Brief for Appellee at 17.