462 F.2d 121 - Gutierrez v. El Paso Community Action Program — 462 F.2d 121

How this case has been cited

Cited by 17 later decisions — most recently September 1990

15 federal appellate · 2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Summary Calendar.*

¶2Fernando Gutierrez, pro se, El Paso, Tex.

¶3Colbert Coldwell, Wellington Y. Chew, El Paso, Tex., for defendant-appellee.

¶4Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.

¶6PER CURIAM:

¶7The 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.

¶8An 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.

¶9The 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 *122Coast 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.

¶10Reversed and remanded.