Abdussamadi v. Vandiford ( 1999 )

UNPUBLISHED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.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Yahya Abdussamadi, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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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
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*Although the United States was not listed on the district court docket
sheet as a party, the United States responded to Abdussamadi's petition
in the district court. Further, Abdussamadi's suit is a challenge to a fed-
eral detainer. Therefore, we consider the United States as the real party
in interest and accordingly find that Abdussamadi's notice of appeal was
timely. See Fed. R. Civ. P. 15(b); Fed. R. App. P. 4(a)(1)(B).
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