MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is a civil rights action brought by the plaintiff, proceeding pro se, who is an inmate at Hutchinson Correctional Facility (HCF) against five officials at HCF pursuant to 42 U.S.C. § 1983. Plaintiff contends that the defendants violated his constitutional rights when they took various actions regarding his confinement at HCF. The defendants are Robert F. Ackley, Elizabeth E. Mascorro, James E. Bedard, J.W. Martin, Jr., and Steven M. Schneider. This matter is presently before the court upon defendants' motion to dismiss.
Plaintiff, proceeding pro se, filed his complaint on May 6, 2011. The complaint contains three counts. Plaintiff alleges that the defendants subjected him to retaliatory conduct, deliberate indifference, and violations of due process and equal protection. In Count 1, he asserts that he was retaliated against for exercising his First Amendment rights to utilize the prison grievance system. He contends that defendants Ackley and Bedard took certain actions to retaliate against him after he filed certain grievances. In Count 2, he alleges that defendant Mascorro engaged in deliberate indifference and cruel and unusual punishment in violation of the Eighth Amendment. He asserts that she told defendant Mascorro about the threats made by defendant Ackley and, in not addressing them, she acted with deliberate indifference because she was waiting for the "consummation of threatened injury." In Count 3, plaintiff alleges that defendants Schneider and Martin violated his due process and equal protection rights under the Fourteenth Amendment. He contends that defendant Schneider failed to properly handle the grievances that he submitted. He asserts that defendant Martin violated various rules in his handling of disciplinary hearings. He requested damages from each defendant in the amount of $50, 000. He also sought (1) reprimands be issued to each of the defendants found to be at fault; (2) a transfer to a more "comfortable facility like a minimum custody facility of my agreement, " and (3) expungement of disciplinary reports that occurred as a result of these events. At the time of the filing of his complaint, he also filed a motion for temporary restraining order and preliminary injunction.
On August 22, 2011, plaintiff filed a motion to strike his motion for TRO and preliminary injunction. This motion was granted on September 8, 2011.
On September 8, 2011, Judge Crow directed that a Martinez report be prepared by officials at HCF so that plaintiff's claims could be processed properly. A Martinez report was filed on June 4, 2012.
The defendants filed the instant motion on June 19, 2012. In its motion, the defendants contend that (1) they are entitled to sovereign immunity for all claims against them in their official capacities; (2) they are entitled to qualified immunity because there was no violation of plaintiff's constitutional rights; and (3) plaintiff has failed to exhaust his administrative remedies.
In response, plaintiff raised several arguments. He suggested that the court should construe defendants' motion as one brought pursuant to Fed.R.Civ.P. 12(c), not Fed.R.Civ.P. 12(b)(6). He further contended that the defendants were misusing the information contained in the Martinez Report. Finally, he argued that he had properly stated a claim in each of the counts of the complaint.
The court shall initially consider plaintiff's contention that the defendants' motion should be construed as one for judgment on the pleadings pursuant to Rule 12(c). The court disagrees. The motion for judgment on the pleadings only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the court. Bushnell Corp. V. ITT Corp. , 973 F.Supp. 1276, 1281 (D.Kan. 1997). Such a motion may be made only after the pleadings are closed. See EEOC v. W.H. Braum, Inc. , 347 F.3d 1192 (10th Cir. 2003). Thus, a defendant may not move under Rule 12(c) prior to filing an answer. Since the defendants have not filed answers in this case, a motion for judgment on the pleadings would be inappropriate here. The court shall consider the defendants' motion as one for failure to state a claim under Rule 12(b)(6). Nevertheless, the distinction between Rule 12(c) and Rule 12(b)(6) is one without difference, as the standards under the two provisions are the same. See Ward v. Utah , 321 F.3d 1263, 1266 (10th Cir. 2003).
The standards for the use of a Martinez report were set forth by Judge Crow in Gunn v. Steed, No. 10-3213-SAC, 2012 WL 1327795, * 1 (D.Kan. April 17, 2012)(footnote omitted) as follows:
The purpose of a Martinez report is to "develop a record sufficient to ascertain whether there are any factual or legal bases for the prisoner's claims." Breedlove v. Costner , 405 Fed.Appx. 338, 343 (10th Cir.2010) (unpublished), cert. denied, 131 S.Ct. 2162 (2011)(citing Hall, 935 F.2d at 1109). The court does not, however, accept the factual findings from the prison investigation in the report when plaintiff has presented conflicting evidence. Id . (citing Northington v. Jackson , 973 F.2d 1518, 1521 (10th Cir.1992); Green v. Branson , 108 F.3d 1296, 1302 (10th Cir.1997). In considering a dispositive motion, a Martinez report is treated like an affidavit. The Court likewise treats the pro se prisoner's complaint, when sworn and made under penalty of perjury, as an affidavit.
The court will utilize the Martinez report in this manner in considering ...