Pollock v. Roberts et al

Filing 20

MEMORANDUM AND ORDER denying 19 Motion for Reconsideration filed by James M. Pollock. Signed by District Judge Sam A. Crow on 10/3/2012.Mailed to pro se party James M. Pollock by regular mail (daw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES M. POLLOCK,
Petitioner,
v.

CASE NO. 11-3125-SAC

RAY ROBERTS, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter comes before the court on petitioner’s motion for
reconsideration (Doc. 19). Petitioner seeks reconsideration of the
court’s order dismissing the present action for habeas corpus as
time-barred, denying his request for a subpoena duces tecum as moot,
and ruling that any claim alleging inadequate medical care must be
submitted in a separate action filed under 42 U.S.C. § 1983 with the
appropriate filing fee or a motion for leave to proceed in forma
pauperis.
Background
Petitioner commenced this action as a petition for habeas corpus
filed pursuant to 28 U.S.C. § 2254 (Doc. 1). Shortly afterward, he
filed an emergency motion to appoint counsel (Doc. 3). In that motion,
he alleged that he was “under a death watch” due to the failure to
treat an aortic aneurysm.
The court appointed counsel to evaluate that claim, noting that
such a claim should not be pursued in an action filed in habeas corpus
and also noting the gravity of petitioner’s allegation of
untreated,

life-threatening

condition.

Accordingly,

the

an

court

directed counsel to file an entry of appearance “pending the filing
of a civil rights complaint” (Doc. 4, p. 3). Counsel conducted a review
of the petitioner’s claim concerning his medical condition but
eventually sought leave to withdraw from this action. Their motion
was granted by the court (Doc. 12), and in a separate memorandum and
order (Doc. 13), the court dismissed petitioner’s claim concerning
medical care without prejudice and advised him that the claim must
be pursued in a separate action filed pursuant to § 1983. Petitioner
also was granted a period of time to show cause why his claims for
habeas corpus relief should not be dismissed as time-barred.
Following review of petitioner’s response, the court entered the
order of dismissal at issue in the present motion for reconsideration.
Discussion
The Federal Rules of Civil Procedure do not specifically provide
for a motion for reconsideration. See Hatfield v. Bd. Of County Comm’rs
for Converse County, 52 F.3d 858, 861 (10th Cir. 1995). Thus, the court
will consider a motion to reconsider as either a motion to alter or
amend filed pursuant to Rule 59(e) or a motion for relief from judgment
filed pursuant to Rule 60(b). Here, because petitioner filed the
motion within six days from the entry of judgment, the court will treat
the motion as filed pursuant to Rule 59(e).1
A party seeking relief under Rule 59(e) must show (1) an
intervening change in the controlling law; (2) new evidence that could
not have been produced previously by due diligence; or (3) the need
to correct clear error or prevent manifest injustice. Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
1

Where the motion is filed more than 28 days after entry of judgment, the court
will construe it as a motion under Rule 60(b0, which must be filed “within a
reasonable time”, and if the motion is made pursuant to Rule 60(b)(1)(2), or (3),
no more than a year from the entry of judgment.

Relief under Rule 59(e) is “extraordinary and may be granted only
in exceptional circumstances.” Allender v. Raytheon Aircraft Co., 439
F.3d 1236, 1242 (10th Cir. 2006)(citations omitted).
The court has reviewed the motion but finds no basis to grant
relief from the order of dismissal. Petitioner has not shown any
intervening change in the law, new evidence, or clear error. Instead,
he appears to assert that a document he filed in this matter
constitutes a separate civil rights action. However, that pleading
(Doc. 14) is not the separate action contemplated by the court’s
earlier orders in this matter, and petitioner cannot escape the fee
obligation for an action under § 1983 by filing a pleading in this
action raising claims concerning medical care.
In any event, the pleading filed by the petitioner does not
contain a timely claim concerning medical attention. First, Count 1
refers to events in January 2008 and concerns a planned transfer of
petitioner to a hospital. Petitioner alleges a guard removed a
catheter from him, waved a pistol, and threatened to shoot someone.
(Doc. 14, p. 3.) This claim must fail because it was not presented
within the two-year limitation period that applies to an action under
§ 1983 filed in this district2. Next, both Count 2, which concerns a
1997 parole hearing, and Count 3, which states petitioner did not
obtain a copy of transcripts until 1994, are claims that sound in
habeas corpus and have no apparent nexus to a claim of constitutionally
inadequate medical care. Accordingly, to the extent petitioner seeks
reconsideration based upon his submission of that pleading, the court
finds no basis to grant relief. This ruling will not prevent petitioner
2

See Baker v. Board of Regents of State of Kan., 991 F2d 628, 630-31 (10th Cir.
1983)(two-year limitation period under K.S.A. 60-513 applies to civil rights action
filed pursuant to § 1983).

from presenting a timely claim concerning the medical care provided
in a separate § 1983 action, but he is not entitled to relief based
upon the pleading submitted in this action.
IT IS THEREFORE ORDERED petitioner’s motion for reconsideration
(Doc. 19) is construed as a motion filed pursuant to Fed. R. Civ. P.
59(e) and is denied.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 3d day of October, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge