United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the court on a petition for habeas corpus.
Petitioner, a person confined at the Larned State Hospital,
proceeds pro se and in forma pauperis. Petitioner has filed
two motions to appoint counsel (Docs. 10 and 15), a motion
for preliminary injunction and temporary restraining order
(Doc. 17), and a motion for joinder (Doc. 18).
of the Petition
petition, a single page typewritten document, states that on
June 26, 2019, petitioner was forcibly administered
medication after he refused it. He seeks “an absolute
fresh start with no debt or record (clean slate)” and
petition has several deficiencies. First, petitioner has
failed to submit the petition on a court-approved form, as
directed by the Court's order of October 18, 2019. Under
the rules of the U.S. District Court for the District of
Kansas, the use of official forms is required for filings
made under 28 U.S.C. § 2241 and 28 U.S.C. § 2254.
D. Kan. R. 9.1(a)(1).
the petition does not name an appropriate respondent. The
proper respondent in a habeas corpus action is the person who
has custody over the petitioner. 28 U.S.C. § 2242;
Rumsfeld v. Padilla, 542 U.S. 425, 435-42 (2004).
petitioner seeks relief that is not available in habeas
corpus. “A habeas corpus proceeding attacks the fact or
duration of a prisoner's confinement and seeks the remedy
of immediate release or a shortened period of
confinement.” McIntosh v. U.S. Parole
Comm'n, 115 F.3d 809, 812 (10th Cir.
1997). While a petitioner may use a habeas corpus application
to challenge the fact or duration of his civil commitment,
petitioner's challenge to the forcible administration of
medication is a challenge to the conditions of his
confinement that should be presented in a civil rights
action. See Nelson v. Campbell, 541 U.S. 637, 643
(2004)(“constitutional claims that merely challenge the
conditions of a prisoner's confinement fall outside of
[the ‘core' of habeas corpus]”).
Court takes notice that petitioner has filed a separate
action under 42 U.S.C. § 1983 that appears to present
the same facts and claims he presents in this
action. Accordingly, the Court will direct
petitioner to show cause why the present matter should not be
stated, petitioner has filed two motions for the appointment
of counsel. There is no constitutional right to the
appointment of counsel in a civil matter. Carper v.
Deland, 54 F.3d 613, 616 (10thCir. 1995);
Durre v. Dempsey, 869 F.2d 543, 547 (10th
Cir. 1989). Rather, the decision whether to appoint counsel
in a civil action lies in the discretion of the district
court. Williams v. Meese, 926 F.2d 994, 996
(10th Cir. 1991). The party seeking the
appointment of counsel has the burden to convince the court
that the claims presented have sufficient merit to warrant
the appointment of counsel. Steffey v. Orman, 461
F.3d 1218, 1223 (10th Cir. 2016)(citing Hill
v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004)). Here, because the Court finds
that the petition does not state a claim that may be advanced
in habeas corpus, the motions are denied.
combined motion for a preliminary injunction and a temporary
restraining order seeks injunctive relief from the forced
administration of medication and from placement in
segregation status without a hearing. Because these claims concern
petitioner's conditions of confinement and do not present
a claim for habeas corpus relief, the motion is denied.
motion for joinder appears to seek the consolidation of this
matter with his other pending lawsuits. Under Rule 42 of the
Federal Rules of Civil Procedure, where actions before the
Court involve a common question of law or fact, the court may
join the matters for hearing or trial, consolidate them, or
issue any appropriate orders to avoid unnecessary costs or
delay. Fed.R.Civ.P. 42(a). Because petitioner does not
present a claim for habeas corpus relief in this action, and
because he is proceeding in a civil rights action that
advances his claim concerning the forcible administration of
medication, the Court concludes that consolidation would not
serve the interests of justice.