                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-1331
WILLIE A. SWANN,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                       (CA-00-800-5-BO-3)

                      Submitted: July 26, 2001

                      Decided: October 22, 2001

      Before WILKINS and NIEMEYER, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

Willie A. Swann, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. SWANN
                               OPINION

PER CURIAM:

  Willie A. Swann appeals the district court’s order granting judg-
ment as a matter of law to Plaintiff in this collection action for default
on a student loan. For the reasons set forth below, we vacate and
remand for further proceedings.

   A review of the record discloses that in response to Swann’s
motion to dismiss the complaint, which was supported by a sworn
Certificate of Indebtedness, Plaintiff moved for judgment as a matter
of law. Citing Swann’s failure to present evidence, the district court
granted Plaintiff’s motion. We find that Plaintiff’s motion for judg-
ment as a matter of law was not properly before the district court
under Fed. R. Civ. P. 50 or 52, and was in fact a motion for summary
judgment.

   A motion for summary judgment may not be granted unless proper
notice is provided under 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.

   Swann did not submit any affidavits in support of his claims to sur-
vive Plaintiff’s de facto summary judgment motion. The district court
granted Plaintiff’s motion, in part, based on Swann’s failure to pro-
duce such supporting evidence. On this record, we cannot find that
the district court’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 district court’s order granting judgment as a matter of law
to Plaintiff and remand this case to the district court with instructions
to provide Swann with the notice and opportunity to respond to which
he is entitled.

   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
                      UNITED STATES v. SWANN                      3
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
