When considering a Motion to Dismiss for Failure to State a Claim Upon which Relief May be Granted Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(c)

QUESTION PRESENTED When considering a Motion to Dismiss for Failure to State a Claim Upon which Relief May be Granted Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(c), “the Court May Not consider facts outside the Record or must treat the Motion as a Motion for Summery Judgment and must inform a plaintiff who is proceeding pro se that it is considering more than the pleadings and must afford a reasonable opportunity to present all pertinent material.” Lucas v. Department of Corrections, 66 F.3d 245, 248 (9" Cir., 1995). (Cir., 1995). (citing Garaux v. Pulley, 739 F.3d 437(9" Cir. 1984). The Pro Se Plaintiff should be advised of Rule 56 requirements, including the right to file counter-affidavits or other responsive materials and to alert [him]to the fact that his failure to so respond might result in the entry of summary judgment against him.” Jacobsen v. Filler, 790 F.2d 1362, 1365 n,8 (9% Cir. 1986). | The district court in this case provided no such advice or opportunity for Petitioner to submit counter-affidavits or other responsive material and the failure to do so deprived Petitioner of his due process rights of notice and opportunity to be heard. Alternatively, the Court should have treated the motion to dismiss as a motion for summary judgment and should have denied the motion to dismiss.