Abdussamadi v. Vandiford

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YAHYA ABDUSSAMADI,

Petitioner-Appellant, v. No. 99-6225 BILLY VANDIFORD,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge. (CA-98-96-5-BO)

Submitted: July 27, 1999

Decided: August 11, 1999

Before HAMILTON, LUTTIG, and KING, Circuit Judges. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL

Yahya Abdussamadi, Appellant Pro Se. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION

PER CURIAM:

Yahya Abdussamadi appeals from the district court's order grant- ing summary judgment for the Respondent and denying relief on his 28 U.S.C. § 2241 (1994) petition.* Prior to entry of summary judg- ment, the district court failed to provide Abdussamadi with notice that the Government's motion to dismiss was being construed as a motion for summary judgment, and an opportunity to respond to the summary judgment motion. See Fed. R. Civ. P. 12(b); Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1471-72 (4th Cir. 1991); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979). This was error. The district court's omission of the notice required under Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), also consti- tuted error. Therefore, we vacate the judgment of the district court and remand for issuance of the required notices and further proceed- ings. We dispense with oral argument because the facts and legal con- tentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED