Appeal from the United States District Court for the Western District of Pennsylvania.
Gibbons, Garth and Maris, Circuit Judges Opinion OF The Court.
Robert Smith-Bey, a prisoner in the State Correctional Institution at Pittsburgh, Pennsylvania, appeals from the district court's order of November 8, 1983 denying him court-appointed counsel.
Proceeding pro se, Smith-Bey filed a civil rights complaint in the district court against various officers and employees of the Pittsburgh prison and the Commissioner and Deputy Commissioner of the Pennsylvania Bureau of Corrections. The complaint charges that the defendants, on November 19, 1982, maliciously and in reckless disregard of Smith-Bey's rights failed to follow his instructions and send an envelope containing legal papers addressed to this court by certified mail, return receipt requested. On the same date, Smith-Bey charges, an amount attributable to the cost of such certified mail, $3.95, was deducted from his inmate account. He seeks a declaratory judgment that the defendants' acts violated his constitutional right of access to the courts, compensatory and punitive damages and enjoinment of any retaliatory activity by defendants.
The district court granted Smith-Bey in forma pauperis status but denied his request for court-appointed counsel which he sought under 28 U.S.C. § 1915(d). Magistrate Mitchell, to whom the case had been referred, denied counsel, without prejudice to subsequent reconsideration, stating that counsel would not, in his view, materially further the litigation and stating also the policy of the court of limiting plaintiffs' requests for attorneys to cases presenting a colorable claim in which the plaintiff appears to lack the capacity to represent himself adequately. Judge Diamond affirmed Magistrate Mitchell's order denying counsel for the reasons given by the magistrate. This appeal followed.
Initially, appellees urge us to reconsider the question of our authority to entertain immediate appeals from orders denying indigents counsel, which question we decided affirmatively in Ray v. Robinson, 640 F.2d 474 (1981). We have done so with particular attention to the Supreme Court's most recent pronouncement on the appealability of pretrial orders, Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984). However, it is helpful to begin our discussion with reference to the statutory basis of our jurisdiction and other relevant Supreme Court cases.
Our jurisdiction is confined, under 28 U.S.C. § 1291, to appeals from final decisions of the district courts which bring before us the propriety of those and all intermediate orders entered by the district court during the course of the proceeding terminating with the entry of the final decision. This restriction on our jurisdiction has as its purpose the avoidance of delaying, costly and sometimes unnecessary piecemeal appeals. See Flanagan v. United States, supra, 465 U.S. at 259; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 471, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978). However, we have jurisdiction also, under 28 U.S.C. § 1292, over appeals from certain interlocutory orders specified in section 1292, and in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), the Supreme Court delineated the contours of a small class of other immediately appealable interlocutory orders. Such an order, as the one from which immediate appeal was permitted in Cohen, must finally determine an important claim of right separable from and collateral to the principal rights asserted in an action and be effectively unreviewable on appeal from the final judgment. Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546. See also Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468.
In Cohen and subsequent cases, the Supreme Court has emphasized the rarity of appealable interlocutory orders. Flanagan v. United States, supra, 465 U.S. at ; Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468; Firestone Tire & Rubber Co. v. Risjord, supra, 449 U.S. at 374; Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546. In Coopers & Lybrand v. Livesay, the Court held that an order of the district court denying a plaintiff continuing class action status was not appealable immediately since it was subject to revision in the district court, the decision required consideration of issues "enmeshed" in the plaintiff's cause of action and it was effectively reviewable after final judgment. It was argued in Coopers & Lybrand that many class actions serve the public interest and that denial of class certification might likely sound the "death knell" of the litigation in that an individual plaintiff might not have the resources or expectation of sufficient recovery to permit him to pursue it alone. The Court pointed out that many interlocutory orders have a similar adverse economic impact on a party but as to all of these orders generally, finality, not incentive to continue the litigation, is the factor determining appealability under section 1291. 437 U.S. at 470-471, 474.
In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981), the Supreme Court considered the appealability of an order denying disqualification of plaintiffs' lead counsel. Noting that it did conclusively determine the question of whether counsel was permitted to continue his representation of plaintiffs and assuming that the issue was separate from the merits of the action, the Court, nevertheless, held the order denying disqualification was unappealable in that it was effectively reviewable on appeal from a final judgment. An argument, somewhat similar to the "death knell" argument urged with respect to the order denying class action status in Coopers & Lybrand v. Livesay, supra, was raised, that denial of disqual i fication of plaintiffs' counsel, whose firm represented defendant's insurer, might "irreparably" harm the defendant by "indelibly" tainting the proceedings with the fruits of a breach of confidence. The Court responded,
Our cases, however, require much more before a ruling may be considered "effectively unreviewable" absent immediate appeal.
To be appealable as a final collateral order, the challenged order must constitute "a complete, formal and, in the trial court, final rejection," Abney v. United States, supra, 431 U.S. at 659, of a claimed right "where denial of immediate review would render impossible any review whatsoever." United States v. Ryan, 402 U.S. 530, 533, 29 L. Ed. 2d 85, 91 S. Ct. 1580 (1971). Thus we have permitted appeals prior to criminal trials when a defendant has claimed that he is about to be subjected to forbidden double jeopardy, Abney v. United States, supra, or a violation of his constitutional right to bail, Stack v. Boyle, 342 U.S. 1, 96 L. Ed. 3, 72 S. Ct. 1 (1951), because those situations, like the posting of security for costs involved in Cohen, "each involved an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860, 56 L. Ed. 2d 18, 98 S. Ct. 1547 (1978).
449 U.S. at 376-377. The Court went on to indicate the manner in which an interlocutory order denying disqualification of counsel is reviewable on appeal from the final judgment:
On the contrary, should the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate ...