Whether a district court must treat a motion to dismiss as a motion for summary judgment when considering facts outside the pleadings and must provide pro se plaintiffs with notice and opportunity to present responsive material

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 Summary 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. Garaux v. Pulley, 739 F. 3d 437(9 thCir 1984) The ProSe Plaintiff should be advised of Rule 56 requirements, including the right to file counter-affidavits or other responsive material and to alert [him] to the fact that his failure to so respond might result in the entry of When summary judgment against him. ” Jacobsen v. Filller„790 F2d 1262, 1365 n, 8(9th Cir. 1986). The district Court in this case provide no such advise 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 the 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.