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. 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.

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