In the Case of Larry Yancey, Petitioner, 838 F.2d 469 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 838 F.2d 469 (4th Cir. 1988)

Submitted: Dec. 15, 1987. Decided: Jan. 19, 1988

Larry Yancey, pro se.

Before SPROUSE and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Larry Yancey seeks to appeal to this Court from an order of the magistrate denying Yancey's motion for appointment of counsel. Finding the order nonappealable, we deny leave to proceed in forma pauperis and dismiss the appeal.

In Miller v. Simmons, 814 F.2d 962 (4th Cir. 1987), cert. denied, 56 U.S.L.W. 3267 (U.S. Oct. 13, 1987) (No. 86-7132), this Court held that orders denying appointment of counsel in civil cases are not appealable prior to final disposition of the case in the district court. We find this principle applicable even where, as here, plaintiff has no action currently pending in the district court. Plaintiff is not seeking appointment of counsel as an end in itself but is seeking the assistance of counsel in pursuing his remedies under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The denial of plaintiff's motion does not close the doors of the courthouse to him. He remains free to pursue his Title VII claim pro se. See Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 762 (6th Cir.) (en banc) (contrasting orders denying appointment of counsel with orders denying in forma pauperis status), cert. denied, 474 U.S. 1036 (1985). As the denial of counsel does not effectively foreclose litigation of plaintiff's claims, it is not appealable as a final order. See Catlin v. United States, 324 U.S. 229, 233 (1945) (final judgment is one which ends the litigation on the merits and leaves nothing for the court to do but execute judgment).

We accordingly deny leave to proceed in forma pauperis and dismiss the appeal as interlocutory. Yancey's motion to expedite the appeal is granted insofar as the appeal has been given prompt consideration consistent with the court's docket. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.