Miller v. Simmons

• Decision Date: 26 March 1987
• Docket Number: No. 85-6664,85-6664
• Citation: 814 F.2d 962
• Parties: James Henry MILLER, Appellant, and Ollie J. Miller, Plaintiff, v. R.D. SIMMONS, Detective; and R.W. Leary, Sheriff and his Deputy Sheriff Jailers in/for Durham, NC, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 962

814 F.2d 962

James Henry MILLER, Appellant, and Ollie J. Miller, Plaintiff, v. R.D. SIMMONS, Detective; and R.W. Leary, Sheriff and his

Deputy Sheriff Jailers in/for Durham, NC, Appellees.

No. 85-6664.

United States Court of Appeals,

Fourth Circuit.

Argued Nov. 14, 1986.

Decided March 26, 1987.

John J. Butler (Sanford, Adams, McCullough & Beard, Raleigh, N.C., on brief) for appellant.

William McBlief (Guy F. Driver, Jr., Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., Brenda M. Foreman, Faison, Brown, Fletcher and Brough, Chapel Hill, N.C., on brief) for appellees.

Before PHILLIPS and CHAPMAN, Circuit Judges, and MAXWELL, United States District Judge for the Northern District of West Virginia, sitting by designation.

MAXWELL, District Judge, sitting by designation.

In this civil rights action, filed pursuant to 42 U.S.C. Sec. 1983 ¹ on November 28, 1984, Plaintiffs allege that Defendants were deliberately indifferent to a serious medical need of Plaintiff, James H. Miller, [Miller] while he was incarcerated in the Durham County, North Carolina jail, October 3-19, 1984, inclusively.

On July 15, 1985 Miller filed his motion for appointment of counsel pursuant to 28 U.S.C. Sec. 1915(d) ² and 18 U.S.C. Sec. 3006A(g). ³ On August 29, 1985 the United States Magistrate denied Miller's motion. Miller then filed notice that he intended to appeal the magistrate's denial of his motion for court-appointed counsel. By Order entered December 27, 1985 the district court found that an interlocutory appeal would be frivolous and not taken in good faith, and denied Miller's request to proceed with his appeal in forma pauperis. Because the immediate appealability of orders denying appointment of counsel in civil cases is an undecided issue in this Circuit, ⁴ this matter was scheduled for briefing and oral argument.

Orders denying motions for appointment of counsel are not, prior to final disposition of the case in the district court, "final decisions" of district courts as contemplated by 28 U.S.C. Sec. 1291. Moreover, it is the view of this court that these orders are not within the parameters of the narrow exception to Sec. 1291, articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and amplified by its progeny. ⁵ Accordingly, the instant appeal is dismissed for lack of jurisdiction.

I.

James H. Miller, a sixty-nine year old Caucasian male with a history of heart problems, was arrested on October 2, 1984 by Durham City Police Detective R.D. Simmons and transported to the Durham County Jail in Durham, North Carolina. At the time of Miller's incarceration his medication was inventoried and then administered to him by jailers at that facility on a daily basis beginning on the day after his arrest. Miller has alleged that on the day he was brought to the Durham County jail he suffered chest pains and that he requested to see a doctor. He has also alleged that he requested medication, but that these requests were denied.

Miller has alleged that he spent twelve days in the Durham County jail before a physician came to see him; that the physician determined that he needed additional medication; and, that four days later he was transferred to the Central Prison Hospital where his previous drug intake was diagnosed as excessive.

Miller subsequently brought this action pursuant to 42 U.S.C. Sec. 1983 against Detective Simmons, Durham County Sheriff R.W. Leary, and the Deputy Sheriff Jailers for Durham County, North Carolina, alleging that they were deliberately indifferent to his medical needs.

II.

In this appeal we are presented with two questions: (1) whether the Order denying Plaintiff's motion for appointment of counsel is an immediately appealable order, and if so, (2) whether the magistrate's decision to deny appointment of counsel was appropriate. Inasmuch as the Court concludes that an order denying appointment of counsel in a civil rights case is not immediately appealable, it is neither timely nor necessary to address the second question.

28 U.S.C. Sec. 1291 provides that Courts of Appeals shall have jurisdiction over "all final decisions of district courts ... except where a direct review may be had in the Supreme Court." (Emphasis supplied). Generally, this language has been interpreted to mean that an appeal under this section may not be taken until there has been "a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351, 357 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911, 916 (1945)); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571, 578 (1981).

Clearly, the Order appealed from in the instant case fails to satisfy this rule. The Order at issue simply denies Miller a mesne request in the on-going prosecution of a claim, the disposition of such intervening request Congress clearly left to the discretion of the district courts. The refusal to appoint counsel early-on, while it may make proceeding somewhat more burdensome for a pro se litigant, does not end the litigation on the merits. Moreover, such preliminary order does not foreclose future consideration by the trial court of the appropriateness of appointment of counsel as facts and circumstances dictate. As employed in the litigation before this court, the Order was one of a series of the magistrate's directives entered "in order to permit the litigation to progress as contemplated by the Federal Rules of Civil Procedure." The pro se litigant remains free to employ counsel to prosecute his claim, to present his claim to the Court on his own, or to renew his motion for appointment of counsel at a later time.

In Cohen the Supreme Court has defined a narrow exception to the generally accepted rule that an appeal under 28 U.S.C. Sec. 1291 must await final judgment on the merits. Inasmuch as the litigation from which the present appeal arises has not yet reached final judgment, the Order denying Miller's Motion for Appointment of Counsel is reviewable only if it falls within the Cohen exception.

In opening a narrow door to the appellate courts, "Cohen did not establish new law; rather, it continued a tradition of giving Sec. 1291 a 'practical rather than a technical construction.' " Firestone, 449 U.S. at 375, 101 S.Ct. at 674, 66 L.Ed.2d at 578-79 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536). Moreover, the Cohen exception, as developed, operates to preserve a number of important policy considerations encompassed in the finality requirement of Sec. 1291. ⁶

Appellant contends that because this case fits within the narrow exception recognized by Cohen this Court should recognize jurisdiction and then reach the merits of the appropriateness of appointment of counsel in the case. The Court is not persuaded by the Appellant's argument.

The collateral order exception, as enunciated by the Supreme Court in Cohen and subsequently restated by that Court, requires that "[t]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Firestone, 449 U.S. at 375, 101 S.Ct. at 674, 66 L.Ed.2d at 579 (quoting Coopers, 437 U.S. at 468, 98 S.Ct. at 2458, 57 L.Ed.2d at 357-58). This Court's examination of each of these factors leads us to conclude, as has a majority of the circuits that have addressed this issue, ⁷ that orders denying motions for appointment of counsel in civil cases are not subject to interlocutory appeals.

III.

Under the first tier of the Cohen exception, the order from which appeal is sought must conclusively determine the disputed question. This first tier, "stated in Coopers as 'must conclusively determine the disputed question,' was restated in Firestone as 'the challenged order must constitute a complete, formal and, in the trial court, final rejection ... of a claimed right....' " Robbins v. Maggio, 750 F.2d 405, 415 (5th Cir.1985) (citations omitted).

Appellant argues that the Order denying appointment of counsel in this case must be considered to be a conclusive order because it came almost a year after the complaint was filed and without indication as to whether the question of appointment of counsel could be reopened at a later date. Because of the policy considerations noted above, the Court is unwilling at this stage of the civil action to view the Order of the magistrate as one which conclusively determines the issue in question. Because the plaintiff's motion was denied without prejudice, this Court believes that the district court can reconsider, at a later time, in the exercise of its discretionary authority, the appointment of counsel as a viable option, if in fact such is determined to be necessary.

Under the second tier of the Cohen exception the order must "resolve an important issue completely separate from the merits of the action." ⁸ The district court in the case before us did not decline to appoint counsel because it concluded that it did not have authority to do so in a civil rights case. In the case before us the district court exercised its discretion and concluded that the plaintiff did not, at the present stage in the development of the civil action, need assistance of court-appointed counsel in presenting what the Court viewed as noncomplex factual issues of the case. In reaching the question of whether the Court below properly exercised its discretion in declining to appoint counsel for the plaintiff, this Court would necessarily become "enmeshed" in the consideration of issues which are not wholly separate from the merits of the case; thus, the second tier of the Cohen exception is not met in this appeal.

The ultimate effect...