UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2131
LENIR RICHARDSON,
Plaintiff - Appellant,
versus
KIMBERLY POWEL; J. C. LYLE, Officer #241;
METRO TRANSIT AUTHORITY; FAIRFAX CONNECTOR;
COMMONWEALTH OF VIRGINIA; FREEDOM BAIL
BONDING, CORPORATION,
Defendants - Appellees.
---------------------------------
MICHAEL LINDNER,
Movant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-04-874-1)
Submitted: January 27, 2006 Decided: February 16, 2006
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Lenir Richardson, Appellant Pro Se. Dale M. Race, LYNCH & RACE,
Fairfax, Virginia, for Appellee Freedom Bail Bonding.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Lenir Richardson appeals a district court order disposing
of her civil rights complaint arising out of her arrest at the
Vienna, Virginia Metro Station. We have reviewed the district
court orders and the record and affirm the dismissal of the
complaint against Washington Metropolitan Area Transit Authority,
the Commonwealth of Virginia and the Fairfax Connector for the
reasons cited by the district court. See Richardson v. Powel, No.
CA-04-874-1 (E.D. Va. filed Nov. 22, 2004; entered Nov. 23, 2004).
We further affirm the dismissal of the complaint against Defendants
Powel and Lyle for the reasons cited by the district court. See
Richardson v. Powel, No. CA-04-874-1 (E.D. Va. filed Sept. 16,
2005; entered Sept. 19, 2005). With respect to the court’s
dismissal of the complaint against Freedom Bail Bonding Corporation
(“Freedom”), we vacate and remand.
A review of the record discloses Freedom moved for a
judgment on the pleadings or for summary judgment and submitted an
affidavit by the company’s president refuting Richardson’s
allegations. The district court relied on the affidavit in
granting Freedom’s motion. As a general rule, if materials
“outside the pleading[s] are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment
. . . , and all parties shall be given reasonable opportunity to
present all material made pertinent to such motion by Rule 56.”
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Fed. R. Civ. P. 12(b); see Gay v. Wall, 761 F.2d 175, 177-78 (4th
Cir. 1985). Citing, inter alia, Richardson’s failure to present
evidence, the district court granted Freedom’s motion. The
district court did not provide Richardson 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 her 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 Richardson responded to Freedom’s motion,
she did not submit any affidavits in support of her claims. The
district court granted Freedom’s motion, in part, based on
Richardson’s failure to produce 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 that part of the district
court’s order granting summary judgment to Freedom and remand this
case to the district court with instructions to provide Richardson
with the notice and opportunity to respond to which she is
entitled.
Accordingly, we affirm the dismissal of the complaint
against Washington Metropolitan Area Transit Authority, the
Commonwealth of Virginia, the Fairfax Connector, Kimberly Powel and
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J.C. Lyle. We vacate the district court’s dismissal in favor of
Freedom and remand for further proceedings consistent with this
opinion.* 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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
*
The reason for remand is entirely procedural and is unrelated
to the merits of the case.
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