Paul Plante initiated this action under 42 U.S.C. §§ 1983 and 1985 alleging that the defendants entered into "a conspiracy to harass (him) and drive him from his position" with the Jacksonville, North Carolina, police department and subsequently "wrongfully discharged" him in violation of the fourteenth amendment. On September 22, 1975, the defendants responded with a motion to dismiss under Rule 12(b) or, in the alternative, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On the same date, the defendant, City of Jacksonville, and the individual defendants filed their separate answers.* The answer of the individual defendants was accompanied by an unsworn written statement by the Chief of Police of the City of Jacksonville. On September 30, 1975, the individual defendants filed a memorandum of law as required by local court rule in support of their previous motions and attached thereto two additional unsworn statements which recited facts and circumstances not mentioned in the complaint. In a Memorandum Opinion and Order of November 7, 1975, the district court dismissed Plante's complaint under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. The court characterized one of the defendants' unsworn statements as "report" and relied upon the material contained therein in dismissing the case.

Rule 12(b), Federal Rules of Civil Procedure, provides that if, on a motion to dismiss for failure of "the pleading" to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Johnson v. RAC Corp., 491 F.2d 510, 513 (4 Cir. 1974); Clark v. Volpe, 481 F.2d 634 (4 Cir. 1973); Smith v. Blackledge, 451 F.2d 1201 (4 Cir. 1971); Leviner v. Richardson, 443 F.2d 1338, 1342 n. 9 (4 Cir. 1971). Rule 12(b) further provides that when on a motion to dismiss under 12(b)(6) matters outside the pleading are to be considered, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." (Emphasis supplied) We have held that the term "reasonable opportunity" includes "some indication by the court to 'all parties' that it is treating the 12(b)(6) motion as a motion for summary judgment," with the consequent right in the opposing party to file counter affidavits or to pursue reasonable discovery. 491 F.2d at 513, quoting Dale v. Hahn, 440 F.2d 633, 638 (2 Cir. 1971).

In the instant case the district court should have excluded from consideration the unsworn statements mentioned above prior to ruling on the Rule 12(b)(6) motion or should have notified the parties that it would address itself to defendants' alternative motion for summary judgment pursuant to Rule 56. Had the latter course been pursued, the court should have provided a "reasonable opportunity" for the parties to file any "material made pertinent to such motion by Rule 56."

The record reveals that the district court was presented with and considered matters outside the pleading. These matters were not excluded from consideration by the court but, on the contrary, are specifically mentioned in its memorandum opinion dismissing the action.1 Under the circumstances, the district court was obligated under Rule 12(b) "to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56." Carter v. Stanton, 405 U.S. 669, 671, 92 S. Ct. 1232, 1234, 31 L. Ed. 2d 569 (1972). There is no indication in the record that the district court gave the requisite notice as provided by the Federal Rules of Civil Procedure prior to dismissing the case.

Dispensing with oral argument, the district court's order of dismissal is vacated and the case remanded in order that the parties be permitted to file, within a reasonable time fixed by the district court, such affidavits or material deemed pertinent to defendants' motion for summary judgment.

Vacated and Remanded.