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Reginald D. EVANS, Plaintiff-Appellant, v. Louis CALDERA, Secretary of the United States Army, Defendant-Appellee

United States Court of Appeals for the Fourth Circuit2001-06-11No. No. 00-2266
9 F. App'x 279

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Opinion

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OPINION

PER CURIAM.

Reginald D. Evans appeals the magistrate judge’s order granting summary judgment to Defendant in this employment discrimination action. For the reasons set forth below, we vacate and remand for further proceedings.

A review of the record discloses that both Evans and Defendant moved for summary judgment, and that Defendant submitted depositions, affidavits, and other materials in support of his motion. The magistrate judge granted summary judgment to Defendant, but did not provide Evans with the notice required by Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975). Roseboro prohibits the entry of summary judgment based on a pro se party’s failure to submit affidavits supporting his allegations unless such party is given a reasonable opportunity to file counter-affidavits or other appropriate materials and is informed that failure to file such a response may result in dismissal of the action. Id.

Although Evans responded to Defendant’s summary judgment motion, he did not submit any affidavits in support of his claims. The magistrate judge granted Defendant’s motion for summary judgment, in part, based on Evans’ failure to produce such supporting evidence. On this record, we cannot find that the magistrate judge’s failure to provide Roseboro notice was harmless error. See Fed.R.Civ.P. 61; Fed.R.Civ.P. 56(e). We therefore vacate the magistrate judge’s order granting summary judgment to Defendant and remand this case with instructions to provide Evans with the notice and opportunity to respond required by Roseboro.

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. The reason for remand is entirely procedural and is unrelated to the merits of the case.

VACATED AND REMANDED.

The parties consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c) (1994), and Fed.R.Civ.P. 73.