UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1749
WILLIAM A. TACCINO,
Plaintiff - Appellant,
versus
NATIONAL RURAL LETTER CARRIERS ASSOCIATION;
GUS BAFFA, President,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(CA-03-2373-JFM)
Submitted: November 30, 2004 Decided: January 26, 2005
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
William A. Taccino, Appellant Pro Se. Michael J. Gan, PEER & GAN,
Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William A. Taccino appeals the district court’s order
granting summary judgment to Defendant in this civil action
alleging breach of the duty of fair representation. For the
reasons set forth below, we vacate and remand for further
proceedings.
A review of the record discloses that Defendant moved for
summary judgment, and that Defendant submitted affidavits and other
materials in support of its motion. Citing, inter alia, Taccino’s
failure to present evidence, the district court granted Defendant’s
motion. The district court did not provide Taccino 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 Taccino responded to Defendant’s summary
judgment motion, he did not submit any affidavits in support of his
claims. The district court granted Defendant’s motion, in part,
based on Taccino’s failure to produce such supporting evidence. On
this record, we cannot find that the district court’s failure to
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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 summary judgment to Defendant and remand
this case to the district court with instructions to provide
Taccino with the notice and opportunity to respond to which he is
entitled.
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
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