dissenting.
Although to a reasonable degree I may accept the established idea that in litigation the pro se litigant should not be given particular advantage but generally held to the same standard of performance as those persons represented by a licensed attorney, Korkow v. Markle, 746 P.2d 434 (Wyo. 1987); Nicholls v. Nicholls, 721 P.2d 1103 (Wyo.1986); Matter of GP, 679 P.2d 976 (Wyo.1984), I would, however, strongly urge that he or she be given a chance if not perhaps even an equal chance. Perceiving a lack of that result in this case, I dissent.
We should look at what actually happened where one of the two appellees won in district court without supporting a motion to dismiss with anything, brief or otherwise, beyond a bare motion prior to the date of hearing and the other litigant now succeeds in securing an affirmation of the dismissed judgment in this court without addressing the subject in any briefing filed in this court.
Appellant, while incarcerated in the Wyoming State Penitentiary, brings this civil action pro se against appellees, the medical services director, Janet Ommen, R.N., and a contract doctor for the penitentiary, Archie Kirsch, M.D. All of this started so simply. Appellant came to the Wyoming State Penitentiary with an established worker’s compensation benefit entitlement for a temporary disability payment derived in award from testimony of a Cheyenne, Wyoming chiropractor, Milo E. Wilcox, D.C. Appellant wanted to continue treatment from Dr. Wilcox in order to continue receiving his temporary total disability benefits.
For reasons known only to them and certainly not apparent from this record, Ommen and Kirsch wanted appellant to be examined by a Casper, Wyoming orthopedic doctor instead of the treating Cheyenne chiropractor. The danger in discontinuance of worker’s compensation injury benefits was self-evident to appellant with the result being that he resisted and then finally sued Ommen and Kirsch for denial of his civil rights for continuation of examination and care by the treating chiropractor. The driving distance from Rawlins, Wyoming to Casper as compared from Rawlins to Cheyenne was not so notably different that a particular cost differential in travel expenses is observable and certainly not demonstrated within this record.
Suit was filed by appellant pro se on January 9, 1990, to be followed by a motion to dismiss by Ommen through one law firm and a motion to dismiss by Kirsch through another law firm. In accord with the Uniform Rules for the District Courts of the State of Wyoming, Ommen filed a memorandum to support the W.R.C.P. 12(b)(6) motion:
Each motion filed, except motions for summary judgment, shall set out the specific point or points upon which the motion is brought, and may be accompanied by a concise brief. No answer brief is required. There will be no specific motion day. When required, hearing of motions will be set on request of counsel or by motion assignment issued by the court. Motions may be submitted on brief if desired. All motions not called up or set for hea[r]ing within 60 days after filing will automatically be denied, with 10 days then allowed for pleading.
Rule 301, Uniform Rules for the District Courts.
*946Each motion followed the normal W.R. C.P. 12(b)(6) form for “failure to state a claim” and neither defined by the motion or by accompanying memorandum in what regard their contentions should be sustained as a generic attack on a rather specific complaint of twenty-three paragraphs.
A subsequent brief was filed by Ommen to center on the subject of a reasonable care standard for persons confined in a penitentiary and in no way addressed the subject of worker’s compensation evaluation and treatment which, of course, was the subject presented by appellant. Kirsch did even less in supporting his W.R.C.P. 12(b)(6) motion and clearly did nothing in any way prior to the hearing date by written memorandum or otherwise to comply with Rule 301, Uniform Rules for the District Courts. A copy of a brief signed by Kirsch’s attorney dated February 26, 1990 shows a mailing certificate of February 26, 1990 and is found in the record with a filing date stamp of February 27, 1990, although the instrument itself is not shown in the district court clerk’s index of instruments included in the record. Obviously the original must have been carried from Casper to the hearing on February 27 in Rawlins, and since no record of the hearing is available, there is no way to tell when, if ever, appellant received a copy. Appellant certainly did not receive a copy in advance of the scheduled Rawlins hearing.
Following receipt of both motions to dismiss and one memorandum, appellant pursued a diligent effort to protect his pro se interest in the litigation. Following the February 13, 1990 Ommen dismissal memorandum, appellant filed on February 16 a “Motion for Order Directing Pre-Hearing Written Argument and Memoranda and Rescheduling Hearing”; on February 20, he filed a “Motion to Restrict Argument at Hearing to Those Issues Upon Which Written Argument Has Been Submitted by the Defendants” and “Plaintiff’s Response to Defendants’ Motions to Dismiss”; on February 21, he filed a “Request for Written Deposition” to secure testimony of his treating medical witness Dr. Wilcox, and “Plaintiff’s Supplemental Response to Defendants’ Motions to Dismiss”; and on February 27, he filed a “Notice and Motion for Restraining Order” followed by the hearing held in Rawlins on February 27, 1990.1
Appellant then filed a “Motion for New Trial or to Alter or Amend the Judgment” responsive to the hearing at which the district judge had orally advised that the motions to dismiss would be sustained. No court order was ever entered in decision of the “Motion for New Trial or to Alter or Amend the Judgment” and, consequently, appellant proceeded further by the appeal presently pending in this court.
Appellant filed a comprehensive brief in this court addressing the substantive sub*947jects of both W.R.C.P. 12(b)(6) motion dismissals and stating four issues:
1. Whether the complaint states a claim for medical malpractice, and whether the district court erred in dismissing the complaint under Rule 12(b)(6), W.R. C.P.
2. Whether the district court erred in failing to consider the Appellees’ motions to dismiss under Rule 12(b)(6), W.R.C.P., as orally argued at the hearing, as motions for summary judgment under Rule 56, W.R.C.P.
3. Whether the district court erred in allowing the Appellees to orally plead affirmative defenses which had not been argues [sic] in writing, thus imposing an impermissible surprise upon the Plaintiff.
4. Whether the district court erred in holding the pro se plaintiff to the same, or higher, standards, as an attorney would have been.
Appellant also provided a specifically requested brief by order of this court addressing timeliness of his appeal. Kirsch and Ommen both addressed the timeliness issue, but this time Ommen did not address in any way the substantive issues presented by appellant. In essence, Ommen submitted her case to this court as appellee without brief, but this time Kirsch provided a timely substantive argument which he had not provided to secure the original W.R.C.P. 12(b)(6) dismissal order in district court.2
Perhaps since this court permits appellant to replead, which in my analysis was originally sufficient under the circumstances in any event to withstand the W.R. C.P. 12(b)(6) motions, the case in its absurd posture does not deserve further appellate time spent in writing here. What happened, however, to this pro se litigant is incomprehensible even to have been acceptable where each party might have been represented by counsel.
In the first place, I believe the Uniform Rules for the District Courts should be enforced within the intended purpose or repealed completely. Osborne v. State, 806 P.2d 272 (Wyo.1991) (Nos. 90-66, 67, 68, decided 2/11/91), Urbigkit, C.J., specially concurring; Phillips v. State, 774 P.2d 118 (Wyo.1989), Urbigkit, C.J., specially concurring; Harvey v. State, 774 P.2d 87 (Wyo.1989), Urbigkit, C.J., specially concurring. Secondly, there is no proper way that the W.R.C.P. 12(b)(6) motion dismissals were justified without reference to extrinsic facts, and proper notice for adequate conversion to summary judgment under W.R.C.P. 56 was certainly not provided. One of the most concise yet complete analyses of W.R.C.P. 12(b)(6) is provided in Texas West Oil and Gas Corp. v. First Interstate Bank of Casper, 743 P.2d 857, 868 (Wyo.1987), Thomas, J., dissenting:
“According to our standard of review we will sustain a dismissal of a complaint only if it shows on its face that the plaintiff was not entitled to relief under any set of facts. Johnson v. Aetna Casualty & Surety Co. of Hartford, Wyo., *948608 P.2d 1299 (1980). In considering such a motion, the ‘facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to plaintiffs.’ Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733, 734 (1979). Dismissal is a drastic remedy, and is sparingly granted. Harris v. Grizzle, Wyo., 599 P.2d 580 (1979).” Mostert v. CBL & Associates, et al., Wyo., 741 P.2d 1090, 1092 (1987).
See Torrey v. Twiford, 713 P.2d 1160 (Wyo. 1986).
In reflecting on the disposition made by this court, I do not know what we do with our often repeated rule that contentions unsupported by proper briefing and cogent argument should not avail the non-performing litigant. Kipp v. Brown, 750 P.2d 1338 (Wyo.1988); Jones Land and Livestock Co. v. Federal Land Bank of Omaha, 733 P.2d 258 (Wyo.1987); Zanetti v. Zanetti, 689 P.2d 1116 (Wyo.1984). We serve in this case to represent the represented in denial of justice to the unrepresented pro se litigant. Cf. Kipp, 750 P.2d 1338.
Pro se litigants may not be justified in receipt of favored treatment, but equal treatment and some degree of intrinsic fairness is required under the rights guaranteed by Wyo. Const, art. 1 and amendments, including the Fourteenth Amendment to the United States Constitution even to be granted to the incarcerated litigant when he proceeds pro se to seek a remedy for a claimed denial of justice.
Consequently, I would reverse the dismissals, send the case back to the district court and then contemplate a more adequate performance before a pro se litigant may be precipitously denied his search to claim justice. I reject W.R.C.P. 12(b)(6) dismissal provided without justified legal support, opportunity to amend, or even opportunity of the litigant to properly respond at an unrepresented hearing. I now reject affirming the initial decision when one of the litigants, the State of Wyoming, does not even bother to respond by appellate briefing to this court.
Consequently, I dissent.
. The dispositive orders provided:
ORDER GRANTING DEFENDANT JANET OMMEN'S MOTION TO DISMISS
The above-entitled matter having come before the Court on Defendant Janet Ommen’s motion to dismiss, and the Court having fully and carefully reviewed and considered the motion, and after hearing held on February 27, 1990, commencing at 9:00 A.M., upon hearing all matters pertinent thereto, and being fully advised in the premises, finds:
That plaintiff's complaint fails to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), W.R.C.P.
IT IS THEREFORE ORDERED that the complaint be, and hereby is, dismissed; defendant’s motion to dismiss is granted.
IT IS FURTHER ORDERED that plaintiff’s motion for restraining order, and motion to restrict argument at hearing, and motion for order directing written argument and rescheduling are hereby denied.
DATED this 5 day of March, 1990.
ORDER OF DISMISSAL
THIS MATTER having come before the Court on Defendant Archie Kirsch’s Motion to Dismiss and the parties having appeared in person or through counsel; and the Court having heard argument and authority in a hearing on February 27, 1990; and the Court being advised of the law and facts of the case DOTH FIND:
1. That the Plaintiffs Complaint fails to state a claim upon which relief can be granted in that it fails to allege the necessary elements of medical malpractice or any other cause of action.
2. That the case should be dismissed.
NOW THEREFORE IT IS HEREBY ORDERED THAT the Plaintiff's Complaint against the Defendant, Archie Kirsch, M.D. be dismissed and Defendant’s Motion be granted.
DATED this 8 day of March, 1990.
. Appellant recognized that the State in behalf of Ommen had not filed a brief and consequently, lacking the opportunity to appear for oral argument and expecting that the case would be heard by expedited docket as it was, filed a motion for order that Ommen not be heard on the appeal and a motion for order adopting appellant’s statement of proceedings as true and correct for purposes of this appeal.
With some thoughtfulness, appellant stated in his motion:
The Appellant filed his "Brief of Appellant” and "Statement of Proceedings Under Rule 4.03, W.R.A.P.” on September 7, 1990. Appel-lee Kirsch did file a brief, but did not respond to the Appellant’s Rule 4.03 Statement of Proceedings. Appellee Ommen has not filed a brief and has not responded to Appellant’s Statement of Proceedings (Appellee Ommen did file a secondary brief purportedly addressing the timeliness of the Appellant’s Notice of Appeal, pursuant to this Court’s June 22, 1990 order, but has not filed a brief addressing the issues of the appeal). Pursuant to Rule 5.11, W.R.A.P., Appellee Ommen now may not be heard on the appeal. Further, as neither Ap-pellee has contradicted Appellant’s Rule 4.03 Statement of Proceedings, the facts stated therein must now be considered to be true for purposes of this appeal.
Wherefore, Appellant moves the Court for Its orders directing that Appellee Ommen may not now be heard on the appeal, and adopting the facts stated in Appellant’s Rule 4.03 Statement of Proceedings as true for purposes of this appeal.
The State did not respond to the motion.