Opinion
No. 71-2269. Summary Calendar.
Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.
February 10, 1972. Rehearing Denied March 28, 1972.
Fernando Gutierrez, pro se, El Paso, Tex.
Colbert Coldwell, Wellington Y. Chew, El Paso, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.
The District Court dismissed this case for failure to state a claim of discriminatory discharge under the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, which is alleged in the complaint to give the Federal court jurisdiction.
An opportunity to amend should have been accorded, so dismissal with prejudice was unwarranted. Whether plaintiff can state a claim under this statute, we do not determine or even faintly intimate.
The fact that the Judge considered affidavits from both sides does not save the order of dismissal with prejudice. Under Rule 12(b) such affidavits at best might bring into play Rule 56, Federal Rules of Civil Procedure, Georgia Southern F. Ry. Co. v. Atlantic Coast Line R. Co., 5 Cir. 1967, 373 F.2d 493, but the 10 day notice that it would be treated as a motion for summary judgment and the opportunity to furnish additional material were not given. The case could not be decided in this way at this stage.
Reversed and remanded.