James Henry Miller, Appellant,andollie J. Miller, Plaintiff, v. R.d. Simmons, Detective; and R.w. Leary, Sheriff and Hisdeputy Sheriff Jailers In/for Durham, Nc, Appellees, 814 F.2d 962 (4th Cir. 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. § 1983¹  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. § 1915(d)²  and 18 U.S.C. § 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. § 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.

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. § 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.

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. § 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. § 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.

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 of the exercise of discretion by the district court in declining to appoint counsel cannot be fairly and adequately assessed until the substance of the entire case is known. Under Section 1915(d) a plaintiff does not have an absolute right to appointment of counsel.⁹  In the district court a plaintiff must show that his case is one with exceptional circumstances.¹⁰  Moreover, a plaintiff may succeed on appeal only if it can be shown that the absence of appointed counsel was so prejudicial that the denial amounted to a denial of fundamental fairness, an abuse of discretion on the part of the district court.¹¹  Were we to reach the merits of the substantive issue at this early juncture and consider whether a prejudicial exercise of discretion has occurred we would improperly overstep the role of a reviewing Court, take on a supervisory role, and become substantively involved in the district court's management of the case before it.

The third tier of the Cohen exception requires that for an order to be reviewable on interlocutory appeal, it must be effectively unreviewable on appeal from the subsequent final judgment entered in the case. Courts which have permitted interlocutory appeals under the reasoning of Cohen have indicated that the particular questions before them were too important and too independent of the cause itself to require delay until final disposition of the case in the district court. Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir. 1981).¹²  We do not view the issue here to be so fleeting or perishable that it cannot endure until the civil action is concluded and an appeal is taken.

In Firestone the Court restated this third tier as one which was met only "where denial of immediate review would render impossible any review whatsoever." Firestone, 449 U.S. at 376, 101 S. Ct. at 675, 66 L. Ed. 2d 580 (quoting United States v. Ryan, 402 U.S. 530, 533, 91 S. Ct. 1580, 1582, 29 L. Ed. 2d 85, 89 (1971)). It is not believed, in cases such as the one now before this court, that such orders are effectively unreviewable on final appeal. It is reasonable to believe that a pro se litigant who has the ability to perfect an immediate appeal upon denial of appointment of counsel by the district court would be equally able to raise denial of appointment of counsel should he be unsuccessful on the merits and take a final appeal in the matter. The Court can perceive no rights in this case which would be extinguished by the denial of an interlocutory appeal. The Appellant has not demonstrated that circumstances exist, which would preclude this pro se litigant from presenting his claim to this Court along with his appeal from the district court should the ultimate issues of his civil action not be resolved in his favor. Experience teaches that a pro se litigant will raise on appeal each and every issue resulting from an unfavorable ruling. If the district court's ruling is found to constitute prejudicial error, its judgment can be vacated and remedial measures can be ordered.¹³  Thus postponement of review does not result in the effective denial of review; the minimal delay caused by requiring the district court's judgment to become final is not sufficient harm, if it be any at all, to bring this case within that limited scope of orders which are immediately appealable under Cohen.

Accordingly, this Court holds that an order denying appointment of counsel upon motion made pursuant to 28 U.S.C. § 1915(d) is not reviewable by interlocutory appeal and remains available for review on appeal from the final judgment. Inasmuch as the finality requirement of 28 U.S.C. § 1291 is jurisdictional in nature, the instant appeal is dismissed for lack of jurisdiction.

DISMISSED.