Pollock v. Roberts et al

Filing 4

MEMORANDUM AND ORDER ENTERED: The court hereby appoints Jean K. Gilles Phillips and Alice Craig White to represent the petitioner in resolving his claim arising from his medical condition. The court requests that both attorneys file a formal entry of appearance in this matter pending filing of a civil rights complaint. Signed by Senior District Judge Sam A. Crow on 7/20/2011. (Mailed to pro se party James Monroe Pollock by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES MONROE POLLOCK,
Petitioner,
CIVIL ACTION
No. 11-3125-SAC

vs.
RAY ROBERTS and the
KANSAS PAROLE COMMISSION,

Respondents.

MEMORANDUM AND ORDER
This matter comes before the court on a petition for habeas
corpus filed pursuant to 28 U.S.C. § 2254.

Petitioner, a

prisoner in state custody, presents four claims, three related
to

his

1983

convictions

of

aggravated

sodomy,

aggravated

battery, and felony theft.
The fourth claim, however, alleges that petitioner suffers
from an aortic aneurysm.

He alleges medical staff at the prison

have refused to authorize surgery for that condition.

Because

that claim does not involve the validity of petitioner’s present
incarceration, the claim should not proceed in this habeas
corpus action but in a complaint filed pursuant to 42 U.S.C.
§1983.

See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir.

2000)(holding that claims concerning a prisoner’s conditions of

confinement must be brought in a civil rights complaint rather
than in a petition for habeas corpus).
Shortly after he submitted the present action, petitioner
filed an emergency motion to appoint counsel (Doc. 3).

In that

motion, he complains that the aneurysm has enlarged and that he
is in serious danger as a result.
A party in a civil action has no constitutional right to
the assistance of counsel in the prosecution or defense of such
an action.
1969).

Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir.

Rather, the decision whether to appoint counsel in a

civil matter lies in the discretion of the district court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).

The

court should consider "the litigant's claims, the nature of the
factual issues raised in the claims, the litigant's ability to
present his claims, and the complexity of the legal issues
raised by the claims."

Long v. Shillinger, 927 F.2d 525, 526-27

(10th Cir. 1991).
The court has considered the record and concludes the
appointment of counsel to assist petitioner on the claim arising
from

his

allegations

medical
are

condition

serious

in

is

warranted.

nature

and

Petitioner’s

require

additional

consideration by the court.
Accordingly, the court hereby appoints Jean K. Gilles
2

Phillips and Alice Craig White, members of the bar of this
court,

to

represent

the

petitioner

arising from his medical condition.

in

resolving

his

claim

These attorneys’ business

address is: The University of Kansas School of Law, Paul E.
Wilson Project for Innocence and Post-Conviction Remedies, 1535
W. 15th St., Suite #409, Lawrence, KS, 66045, and the telephone
number for that office is [phone].
The court requests that both attorneys file a formal entry
of appearance in this matter pending the filing of a civil
rights complaint.

The court further suggests that they review

D. Kan. Rules 83.5.3(e)(2) and (f), and 83.5.3.1 regarding the
reimbursement of out-of-pocket expenses that are incurred by
appointed

counsel,

available

on

the

www.ksd.uscourts.gov/forms/index.php.

court’s
Copies

of

website
this

at:
Order

shall be sent to petitioner and to the attorneys appointed to
represent him.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 20th day of July, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge

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