
    UNITED STATES of America, Plaintiff-Appellee, v. Willie A. SWANN, Defendant-Appellant.
    No. 01-1331.
    United States Court of Appeals, Fourth Circuit.
    Submitted July 26, 2001.
    Decided Oct. 22, 2001.
    Willie A. Swann, pro se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Raleigh, NC, for appellee.
    Before WILKINS and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
   OPINION

PER CURIAM.

Willie A. Swann appeals the district court’s order granting judgment 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 Plaintiffs motion. We find that Plaintiffs motion for judgment 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 survive Plaintiffs de facto summary judgment motion. The district court granted Plaintiffs motion, in part, based on Swann’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 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 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.  