Dennis Phillips v. Marjusri Basu, No. 12-7787 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7787 DENNIS EDWARD PHILLIPS, Plaintiff - Appellant, v. MARJUSRI BASU, Nurse Supervisor; JEFF SELENE PAREKH; DR. VINCENT C. IGOEKWE, WALKER, Nurse; DR. Defendants Appellees, and BRYAN JONES, Lawyer; SHERIFF JOHN MCDIVETT; A. B. SAUNDERS, Nurse, Defendants. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:10-ct-03069-D) Submitted: March 26, 2013 Decided: April 9, 2013 Before MOTZ, GREGORY, and KEENAN, Circuit Judges. Affirmed in part, vacated in part and remanded by unpublished per curiam opinion. Dennis Edward Phillips, Appellant Pro Se. Kelly Street Brown, Elizabeth Pharr McCullough, YOUNG, MOORE & HENDERSON, PA, Raleigh, North Carolina; Kari Russwurm Johnson, CRANFILL, SUMNER & HARTZOG, LLP, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Dennis Edward Phillips appeals the district court s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have Saunders, reviewed Parekh, reversible error. these parties for the record Igboekwe, and, as McDevitt, to and Defendants Jones, we Basu, find no Accordingly, we affirm the judgment as to the reasons stated by the district court. Phillips v. Basu, No. 5:10-ct-03069-D (E.D.N.C. Feb. 1, 2011; Nov. 3, 2011; & Sept. 13, 2012). As to Defendant Walker, however, we vacate the district court s order dismissing Phillips claim against him, because the court failed to advise Phillips of its conversion of Walker s motion to dismiss to one for summary judgment. See Fed. R. Civ. P. 12(d); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) (stating requirements for converting Fed. R. Civ. P. 12(b)(6) motion to summary judgment motion). The court also failed to sufficiently apprise Phillips of his rights under Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). Accordingly, we vacate the district court s judgment in favor of Walker and remand for further proceedings. * We deny Phillips motions to voluntarily dismiss Jones from the appeal, * By this disposition, we indicate no view as to the outcome of the proceedings on remand. 3 to file emergency facts and materials an attachment stay. legal before We to his dispense informal with oral brief, argument contentions are adequately this and argument court and because presented would for not an the in the aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 4

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