Robbins v. Maggio

Decision Date14 January 1985
Docket NumberNos. 83-3240,83-3429 and 83-4409,s. 83-3240
Citation750 F.2d 405
PartiesJohnny W. ROBBINS, Plaintiff-Appellant, v. Ross MAGGIO, Warden, Louisiana State Penitentiary, et al., Defendants-Appellees. Charles Edward BOLDEN, Plaintiff-Appellant, v. Dr. (Name Unknown) UNIVERSITY MEDICAL CENTER, et al., Defendants-Appellees. Kenneth James MIDKIFF, Plaintiff-Appellant, v. Joseph C. DUHON, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Johnny W. Robbins, pro se.

Bruce V. Schewe (Court-Appointed), New Orleans, La., for plaintiff-appellant.

J. Marvin Montgomery, Lon E. Roberson, Asst. Attys. Gen., Joseph Erwin Kopsa, Baton Rouge, La., for defendants-appellees.

Charles Edward Bolden, pro se.

Frances Baker-Jack (Court-Appointed), Shreveport, La., for plaintiff-appellant.

McHugh & Guidry, Edmond L. Guidry, III, Daniel G. Guidry, Martinville, La., for Champagne & Dundas.

Kenneth James Midkiff, pro se.

Bruce V. Schewe (Court-Appointed), New Orleans, La., for plaintiff-appellant.

William J. Guste, Atty. Gen., Baton Rouge, La., William L. Goode, Lafayette, La., for defendants-appellees.

Appeals from the United States District Court for the Western District of Louisiana.

Before POLITZ, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

We consider three appeals from denials of petitions for appointment of counsel under 28 U.S.C. Sec. 1915(d). The appeal consolidates three independent in forma pauperis civil rights actions brought by prison inmates pursuant to 42 U.S.C. Sec. 1983. Each plaintiff moved the district court for appointment of counsel, but in each case, the motion was denied. Plaintiffs appeal from the denial of these motions. Two issues are presented on appeal: (1) whether the denials of motions to appoint counsel in these cases are appealable orders under 28 U.S.C. Sec. 1291 and if so, (2) whether the decision to deny appointed counsel in any or all of the three cases was appropriate. We first conclude that denial of counsel in a civil rights case is appealable as a final collateral order. Finding jurisdiction, we remand each case on the merits for more detailed findings by the district court as to why appointment of counsel was denied.

FACTS

The first of the three cases in this consolidated appeal was brought in December 1981, by Johnny W. Robbins, an inmate at the Louisiana State Penitentiary. Robbins brought suit under 42 U.S.C. Sec. 1983, alleging that he had been denied competent medical assistance, and that he had been denied an appropriate diet. Robbins' suit was filed in forma pauperis, and referred to a United States magistrate.

Robbins moved for appointment of counsel under 28 U.S.C. Sec. 1915(d) 1. In December 1982, the magistrate denied plaintiff's motion for appointment of counsel. Over a year later, in April 1983, the magistrate again denied a motion for appointment of counsel, stating in a minute entry that "this case is not too complex for presentation by the plaintiff ... [and] plaintiff is capable of properly investigating this case."

Thereafter, on April 22, 1983, Robbins filed a notice of appeal stating that review was sought "by the United States Court of Appeals for the Fifth Circuit from the final judgment entered in this action, denying plaintiffs an attorney on the 7th day of April, 1983." On April 26, 1983, four days after Robbins filed the notice of appeal, the district court affixed a handwritten order to Robbins' certificate for appeal, pursuant to Fifth Circuit Rule 24. 2 The order stated:

Petitioner seeks to appeal from an order of the magistrate who refused to appoint counsel to referenced petitioner in this Sec. 1983 action. There was no abuse of discretion on the part of the magistrate. The Court finds petitioner is not entitled to counsel at this time in this suit.

Robbins did not file a formal notice of appeal from the April 26, 1983, district court order. On May 24, 1983, however, Robbins did file in this Court a document entitled "MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS." At issue is whether either of the motions filed by Robbins satisfies the requirements for proper notice of appeal from the April 26, 1983, district court order.

The second plaintiff, Charles Edward Bolden, filed a pro se complaint under 42 U.S.C. Sec. 1983 in March 1983. Bolden alleged inadequate medical treatment while incarcerated at the St. Martin Parish Jail. 3 Named as defendants were Steve Champagne, Warden of the St. Martin Parish Jail; Earl Dundas, a nurse at the jail; and Dr. Willis Bienvenue, a physician at University Medical Center. In May 1983, Bolden moved for appointment of counsel. The motion was supported by an affidavit stating that "I can not read or write to good and in a case like this I don't no all my right." The district court denied Bolden's motion on June 15, 1983, concluding that "this is not such an exceedingly complex case that Plaintiff will not be able to adequately represent himself." Bolden timely filed this appeal.

The third and final plaintiff, Kenneth James Midkiff, filed a Sec. 1983 suit in forma pauperis in May 1983. Midkiff alleged that he had suffered a broken hand while incarcerated at the Lafayette Parish Jail, and that he had not received proper medical attention. In an affidavit attached to the complaint, Midkiff moved for appointment of counsel pursuant to 28 U.S.C. Sec. 1915(d) stating that "I will not be able to file any other papers, and do not have law books to look up case law." Midkiff has a high school education.

In June 1983, the district court denied Midkiff's motion for appointment of counsel, concluding that the case was not overly complex. Midkiff filed timely notice of appeal from the district court order on June 23, 1983. On that same day, Midkiff filed a second federal lawsuit, based on the same facts as the first suit 4, against Joseph C. Duhon, Warden of the Lafayette Parish Jail, and Brett Pryor, jailer. Midkiff simultaneously made a motion for appointment of counsel, alleging that the case was serious and that "[I] have no law understand what so ever."

On July 6, 1983, the magistrate consolidated Midkiff's two suits, and denied Midkiff's motion for appointment of counsel. Midkiff timely filed this appeal.

I. NOTICE OF APPEAL

We must first decide whether the appeal of appellant Robbins is timely. Robbins failed to file a document constituting a timely notice of appeal pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure. Rule 4(a) requires that a notice of appeal "be filed with the clerk of the district court within 30 days after the date of the entry of the judgment or order appealed from." The time limitation for filing a notice of appeal is jurisdictional and lack of a timely notice mandates dismissal of an appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). Williams v. Treen, 671 F.2d 892, 895 (5th Cir.1982), cert. denied, 459 U.S. 1126, 103 S.Ct. 762, 74 L.Ed.2d 977 (1983). We do accept the filing of certain documents other than a formal notice of appeal, if filed within the thirty day limit of Rule 4(a), as the substantial equivalent of a notice of appeal.

This Court has repeatedly held that a request to proceed in forma pauperis satisfies the filing requirement for notice of appeal. See Causey v. Civiletti, 621 F.2d 691 (5th Cir.1980); Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974); Tillman v. United States, 268 F.2d 422 (5th Cir.1959). Plaintiff Robbins' motion to proceed in forma pauperis was filed within the thirty day period following the district court's denial of appointment of counsel, and as such, we accept it as the substantial equivalent of a timely notice of appeal. 5

II. JURISDICTION

We next address the question of our jurisdiction over these appeals. Section 1291 of 28 U.S.C. provides, "[t]he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court." (emphasis added). A final decision for purposes of Sec. 1291 has been defined as "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 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Appellees argue that an order denying counsel does not prevent a litigant from presenting a pro se claim to the court. Since such an order does not end the litigation on the merits, it cannot be considered a "final decision." Accordingly, appellees argue that this Court has no jurisdiction to consider these appeals.

In response, appellants contend that even if the orders denying counsel do not constitute "final decisions," they nevertheless are appealable under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The issue in Cohen was the appealability of a district court order in a stockholder's derivative suit, denying a defendant's motion that the plaintiff be required to post security for costs of litigation. Although that order did not technically end the litigation on the merits, the Court held that it nevertheless was immediately appealable. The Court reasoned that an order denying security for costs would be unreviewable if review was postponed until final disposition of the merits. After disposition of the case on the merits, any right plaintiff might have to security would be lost. Thus, the Court created an exception to the final decision requirement. In Cohen the court explained that this "collateral order" exception is applicable when the district court order falls within "that small class which finally determine[s] claims of right separable from, and collateral to, rights asserted in...

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