dissenting:
I dissent and would remand this case for the reasons indicated. Plaintiff Neal W. Roland, an inmate in the State Prison of Southern Michigan (SPSM), brought a civil rights action against several officials of the Michigan Department of Corrections, including Perry Johnson, the director of the Michigan Department of Corrections; Dale Foltz, the Warden of SPSM; Thomas Phillips, the Administrative Assistant to Warden Foltz; and Bernard Toland, the Director of Job Classification at SPSM.1 Roland’s complaint stated that he is “a young, fair skinned white male standing 5'11", 150 pounds, slightly built with youthful features.” He asserts that these characteristics made him a prime rape target at SPSM, and further alleges having no history of assaultive or violent behavior. Plaintiff was reclassified to medium custody and was recommended for a transfer to Muske-gon Correctional Facility on April 5, 1983, but continued to be held at SPSM due to a *771medical problem, a hemotoma on his head.2 Plaintiff signed a medical waiver form for the prison authorities to expedite his transfer from SPSM to another facility.
While at SPSM, plaintiff was housed in an “honor block,” 11 block, in which residents are given more privileges, including more out-of-cell time, than in other cell blocks. To qualify for admission to 11 block, an inmate is required to refrain from major misconduct for twelve months, and from minor misconduct for six months. In August 1983, 11 block was changed from a close custody prison block to a lower, medium custody level. This meant that over 450 inmates, spread out over five tiers, were supervised by only three corrections officers. Plaintiffs third-tier cell could not be seen from the guards’ room.
On November 30, 1983, Roland was allegedly raped by another 11 block inmate, Frankie Lee Weatherspoon, who was serving life without parole for murder. Another inmate, Daniel Perry, allegedly acted as a lookout for Weatherspoon. A nearby inmate saw part of the attack and confirms Roland’s claim of rape by other inmates. Additional evidence of the incident is the fact that Roland sought medical attention as a result of claimed injuries from this sexual assault. The record shows Perry and Weatherspoon were classified as requiring close security, a higher security classification than medium security. Normally medium and close security inmates are not housed together, but when 11 block was changed from close to medium classification, certain close security inmates were allowed to remain. Roland charges that allowing persons with close security classification such as Weatherspoon and Perry to be housed with those classified as requiring medium security amounted to a disregard for his safety, and for others in his same status.
Not only were Weatherspoon and Perry allowed to remain in 11 block after its reclassification, they were allowed significantly more freedom than normal inmates. As “porters” or “block help” they were allowed out of their cells more often and earlier than other inmates. More significantly, their status in the block meant Weatherspoon and Perry operated the mechanical devices on each tier that simultaneously unlocked the cells on that particular tier of block 11. Thus Perry and Weatherspoon had complete access to Roland’s cell, and Roland claims this access and the known predatory character of his assailants were the bases for the foreseeability of the rape.
Roland has produced some evidence indicating prison authorities knew of these prisoners’ propensity for violence. Information developed by discovery demonstrated that in January of 1983 investigative reports prepared by the Department of Corrections revealed that a gang of inmates in 11 block were pressuring other inmates for sex. Apparently officials had identified some inmates who had been pressured and raped, but they were reluctant to testify against the gang members. In the report, Perry was consistently reported to be a member of this gang. Weatherspoon was not mentioned, but he was not in 11 block at the time the reports were prepared. Roland claims that in late 1983, prior to his rape, additional reports concerning the sexual pressure group were brought to the prison authorities’ attention.
Information available to prison officials regarding Weatherspoon includes his supplemental presentence investigation report for a 1979 offense. This report notes a “history of assaultive behavior” and adds, “this man’s violent temper could easily escalate to other members of the community.” A supplemental report from 1981 reflects not only Weatherspoon’s history of assaultive behavior, but also that he is “highly aggressive [and] violent.” In addition, Weatherspoon’s psychological report sets out that he is “a predatory individual who previously pressed other inmates for sex and money, and who made so many enemies in the institution that he spent some months in administrative segregation.” It further notes that he “is very aggressive and assaultive, and ... highly predatory.” This evaluation is buttressed *772by other documents which indicate that Weatherspoon is a “homosexual predator.”
In addition to Perry’s reputation in 11 block for being a gang member exerting sexual pressure on others, his prison file shows that since a very early age “he has documented serious and assaultive incidents of a predatory nature.” Perry was incarcerated at SPSM for first degree criminal sexual conduct and armed robbery. Perry was classified in 1983 as a very high assaultive risk.
Defendant Toland, the Job Classification Director at SPSM, screened Perry and Weatherspoon for job placement and assigned them to their positions of privilege in 11 block. Suit against Toland is based on his refusal to reclassify and remove Weatherspoon from his job assignment after he was requested to do so by 11 block’s Assistant Resident Unit Manager Richard Thrams due to “knowledge that Weather-spoon was a homosexual predator.” Defendants Johnson and Foltz are joined as prison officials responsible for Roland’s safety. According to the complaint, Thrams requested the reclassification of both Weatherspoon and Perry because of their reputation as social and sexual deviants. Defendant Toland defended on grounds that he needed some written documentation or a disciplinary finding to warrant transfer, and that he received none.
Plaintiff’s mother claims that she visited defendant Phillips, administrative assistant to the warden, before her son’s rape to inquire about transfer of plaintiff to another factility. She stated that she notified Phillips that the plaintiff was in danger of being assaulted by homosexual predators. Phillips denies meeting with Mrs. Berry or having any such discussion but concedes that he had a phone conversation on August 24, 1988, regarding Roland’s medical hold and his transfer. Roland’s mother claims she showed Phillips a photograph of her son and told him that some blacks were pressuring her son for sex. She swore in her deposition that Phillips responded to this by stating that if plaintiff was not a homosexual, he had nothing to worry about. Plaintiff also asserts that Phillips was aware of an investigation of Perry and Weatherspoon relating to sexual pressuring prior to the episode at issue.
The district court first referred this controversy to Magistrate Steven D. Pepe for report and recommendation under 28 U.S. C. § 636(b)(1)(B). Later, the district judge issued a second order of reference (June 26, 1985):
Pursuant to Tile [sic] 28 U.S.C. Section 636, IT IS HEREBY ORDERED that the above entitled cause is assigned to the docket of Magistrate Steven D. Pepe, United States Magistrate for all pretrial and appropriate hearings under 636(b)(1)(A) and (B). Magistrate Pepe is further appointed as special master under 636(b)(2) and Fed.R.Civ.P. 53 and, upon consent of the parties, may try the matter at the earliest available date and thereafter file a report and recommendation with the district judge. In lieu of the meeting provision of Rule 53(d)(1), the Clerk of the Court shall set such pretrial and trial dates and issue such other notices as are appropriate.
The parties consented to trial by jury before the magistrate, and the consent was docketed July 8,1985. These two referrals have resulted in confusion over the legal effect of the magistrate’s subsequent action.
Once before the magistrate, all defendants moved for summary judgment. The magistrate filed an eighty-eight page report and recommendation that defendants’ motion for summary judgment be denied. The district court, however, dismissed the case without mentioning the magistrate’s report. Thereafter, the district court awarded costs of $1,275.42 to the defendants “for deposition transcripts." Plaintiff’s appeal is from these actions. Plaintiff now argues that the reference to the magistrate as a special master under Civil Rule 53 and 28 U.S.C. § 636(b)(2) required the district court to accept the magistrate’s report unless it was “clearly erroneous.” He asserts that the district court’s failure to mention the report in its order granting summary judgment to defendants, and its failure to demonstrate that the magis*773trate’s report was clearly erroneous, constitutes reversible error.
Defendants take the position that because the magistrate advised the parties to file objections from his report within ten days pursuant to § 636(b)(1), the report was issued under § 636(b)(1) rather than (b)(2), and was, therefore, subject to the “de novo” standard of review by the district court.3 Defendants also argue that this court cannot assume that the district court would fail to review the relevant evidence before issuing its decision, despite the fact it did not mention the magistrate’s exhaustive report and review of the record before him.
It is difficult to determine the magistrate’s status in this case. On one hand, the court’s first referral, filed June 17, 1985, states that the matter is to go before “Steven O. Pepe, United States Magistrate, for report and recommendation under 636(b)(1)(B).” Further, at the conclusion of the magistrate’s report, he states “[a]ny objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636(b)(1).” This is strong evidence that both the court and the magistrate saw the case as a referral pursuant to § 636(b)(1), and the district court’s proper standard of review is de novo.
On the other hand, the court’s second referral, issued June 26, 1985, refers the case to Magistrate Pepe as both a magistrate under § 636(b)(1) and as a special master contemplated by § 636(b)(2). This second referral clearly contemplated that the magistrate could try the ease as a special master if the parties consented, which they did. This gives at least some indication that the matter was before the magistrate pursuant to § 636(b)(2) and the proper standard of review is the clearly erroneous standard.
The legal implication of the type of reference is significant in this case. As above stated, the district court made no mention of the magistrate’s report in rejecting it. If this report were issued in the magistrate’s capacity as a “special master” under § 636(b)(2), his conclusion may be overturned by the district court only if clearly erroneous. If, however, the report was made in Magistrate Pepe’s normal capacity as pretrial magistrate, a trial court’s review of the findings must be de novo, if a party makes timely objections to the report.
The findings of fact of a special master must be accepted by the district court unless they are clearly erroneous. Rule 53(e)(2), Fed.R.Civ.P. On the other hand, where a magistrate appointed pursuant *774to § 636(b)(1)(B) files proposed findings and recommendations and a party files timely objections thereto, a “judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Section 626(b)(1)(C).
Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir.1981); see also Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984).
As we made clear in Hill, Fed.R.Civ.P. 53(e)(2), which governs district court references to masters, the district court is to accept the master’s findings of fact “unless clearly erroneous.” We also stated in Hill that “there is no provision in § 636(b)(1) for referring a case to a magistrate for trial on the merits.” 656 F.2d at 1212. In the instant case, the parties and the district court apparently contemplated and agreed that, if necessary, trial on the merits would be before the magistrate. It is clear that, absent unusual circumstances, the parties must consent to a trial before a magistrate under § 636(b)(2). Thornton v. Jennings, 819 F.2d 153 (6th Cir.1987); Hill, 656 F.2d at 1212. There was no specific reference to the magistrate to hear the motion for summary judgment as such.
We conclude that the district court must first determine in what capacity Magistrate Pepe was acting. The parties made no objection to either of the references made by the district court to the magistrate, whether under § 636(b)(1) or (b)(2). Having made no objection before the magistrate submitted his report, we believe the parties may not now object to whatever determination ultimately may be made as to whether or not the magistrate was acting as a special master. Hill, 656 F.2d at 1213; Day, 749 F.2d at 1201-02.
The district court, in its order of dismissal dated July 10, 1986, surprisingly made no reference whatsoever to the lengthy June 12, 1986 report and recommendation against granting defendants’ motion for summary judgment. Defendants’ objections to that report and recommendation were not filed until June 27, 1986, more than ten days after the filing of the report.4 Section 636(b)(1)(B) specifies that “[wjithin ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” (emphasis added) Proof of mailing of the report and recommendation was filed June 12, 1986. The magistrate’s report and recommendation concluded with the warning:
Any objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636(b)(1). Failure to file objections within the specified time constitutes a waiver of any further right of appeal.
If no objection is filed within the specified period with this warning to the parties, there is a waiver of the right to appeal under § 636(b)(1). Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).5
There was no consideration given by the district court of the role of the magistrate in this unusual situation, particularly whether he was acting as a special master or not, and no consideration given about the timeliness of objections to the lengthy report and recommendation submitted to the court. If the magistrate were acting as a special master under the second order of reference, the report and recommendation and the findings therein would be accepted unless clearly erroneous. In that *775event, the district court would necessarily have to set out clearly the basis for his setting aside the report and recommendation if he found the report, and the findings therein, to be clearly erroneous. Even if the report and recommendation were deemed to be that of a magistrate under § 636(b)(1), the district court would be obligated in our view to make some reference to the magistrate’s findings and determinations to set out a basis for its agreement or disagreement with the magistrate in the de novo determination of matters objected to by one of the parties. See 28 U.S.C. § 636(b)(1)(B) and (C); United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 66 L.Ed.2d 424 (1980); Hill v. Duriron Co., 656 F.2d 1208, 1213; Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974).
The district court has not considered whether defendants’ objections to the magistrate’s report and recommendation were timely filed and, if not, the effect of such a determination. Also, the district court has made no reference to the status of Roland’s asserted state court claims found in count five of his complaint.
In light of the difficulties and uncertainties herein discussed, I am persuaded that this matter should be REMANDED to the district court for consideration and treatment of the questions involved. (We should set aside, in any event, the district court’s award of costs for deposition transcripts; plaintiff’s asserted claims are not so essentially baseless and frivolous as to warrant such imposition.)
. In plaintiffs first amended complaint, Count V, there is also reference to plaintiffs rights by reason of defendants’ "gross negligence and/or reckless disregard for the personal safety of the plaintiff under Michigan law, and the regulations and rules of its Department of Corrections.
. SPSM houses the primary medical facilities for the Michigan Department of Corrections.
. The pertinent sections of 28 U.S.C. § 636 are:
(b)(1) Notwithstanding any provision of law to the contrary—
(A) a judge may designate a magistrate to hear and determine any pretrial matter ... except a motion ... for summary judg-ment_ A judge of the court may reconsider any pretrial matter under this subpara-graph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
(C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties.
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.
(2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts, (emphasis added).
. Revised objections were filed by defendants on June 28, 1986. The Joint Appendix contains no copy of any objections except those filed June 28, 1986.
. Section 636(b)(2) contains no similar ten day rule requirement. But see Fed.R.Civ.P. 72(b) dealing with magistrates and pretrial matters, specifically dispositive motions. Rule 72(b) refers to situations where a magistrate is "assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense.” That rule also contains language similar to that of § 636(b)(1) requiring written objections within ten days. Whether this same time limitation for objections applies to a special master’s report and recommendation is a question not free of doubt. See Hudson v. Nabisco Brands, Inc., 758 F.2d 1237 (7th Cir.1985).