The opinion of the court was delivered by: Carlos Murguia United States District Judge
Plaintiff Roderick F. Fields, a prisoner in the Lansing Correctional Facility, brings this pro se action pursuant to 18 U.S.C. § 1983. Plaintiff claims that four employees of the Kansas Department of Corrections deprived him of his constitutional rights when they failed to protect him from inmate attacks and demonstrated deliberate indifference to his serious medical needs. Defendants Poston and Himes filed a Motion for Judgment on the Pleadings (Doc. 29). Defendants Huffman and Lambert have not yet been served and are not addressed in this Memorandum and Order.
The court reviews a Rule 12(c) motion for judgment on the pleadings under the same standards as a Rule 12(b)(6) motion to dismiss. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992) (citation omitted). The court will grant a Rule 12(b)(6) motion to dismiss only when the factual allegations fail to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). While the factual allegations need not be detailed, the claims must set forth entitlement to relief "through more than labels, conclusions, and a formulaic recitation of the elements of a cause of action." In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id.
"All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court construes any reasonable inferences from these facts in favor of plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Where, as here, the plaintiff proceeds pro se, the court construes the pro se pleadings liberally. Hall v. Doering, 997 F. Supp. 1445, 1451 (D. Kan. 1998) (citing Hughes v. Rowe, 449 U.S. 5, 9--10 (1980)). On the other hand, a plaintiff's pro se status does not relieve him from complying with this court's procedural requirements. Barnes v. United States, 173 F. App'x 695, 697 (10th Cir. 2006) (citations omitted); see also Santistevan v. Colo. Sch. of Mines, 150 F. App'x 927, 931 (10th Cir. 2005) (holding that a pro se litigant must follow the same rules of procedure as other litigants).
The following facts are taken from plaintiff's complaint and are taken as true.
In September and November 2005, "known crip gang members" attacked plaintiff. Both times, defendant Poston was aware of the attack. In September, defendant Poston played some role in disposing of the bloody mop handle used in the attack. A few hours later, she told plaintiff, "You know I'm thinking wood chips about now." In November, she watched another known crip gang member try to attack plaintiff with a metal shank and a wooden stick.
On December 14, 2005, another inmate, who was not a crip gang member, attacked plaintiff.
Inmate Berrends threw boiling water and chemicals on plaintiff because two crip gang members told him that he could become a crip if he did so. Defendant Poston picked up the hot pot as evidence, but then returned it to its owner, another inmate. As a result of the attack by inmate Berrends, plaintiff suffered blisters and wounds.
After the attack, plaintiff repeatedly requested medical assistance from defendant Himes over the intercom. Defendant Himes was operating the Officers' Control Booth. Correctional officers walked past plaintiff's cell and watched plaintiff "screaming in agonizing pain as the blisters got bigger and were spewing pus constantly." The next morning, plaintiff ran to the health clinic as soon as his door was opened for breakfast. Medical staff hospitalized him for serious conditions and stated that prison staff had delayed and denied much-needed emergency medical treatment.
Although these facts form the basis of the complaint, defendants ask the court to consider several other facts contained in exhibits to Plaintiff's Traverse to "Defendants['] Answer" (Doc. 28) and the Martinez Report (Doc. 20). According to these facts, plaintiff received treatment prior to asking defendant Himes for help. Also according to these facts, plaintiff did not know inmate Berrends before the December 14 attack and had never had any words or interaction with him.
At this stage of the proceedings, the court cannot consider the additional facts to which defendants point. True to its name, a motion for judgment on the pleadings must be decided only on the pleadings. Using a Martinez report to review a motion for judgment on the pleadings is inappropriate. See Ketchum v. Cruz, 961 F.2d 916, 919--20 (10th Cir. 1992). Rule 7(a) identifies seven specific types of pleadings, and those are the only pleadings allowed in a lawsuit. A reply to an answer is allowed, but only "if the court orders one." Fed. R. Civ. P. 7(a)(7). Here, the court did not order plaintiff to reply ...