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Williams v. Catoe

United States Court of Appeals, Fifth Circuit

January 7, 2020

ELLIOTT WILLIAMS, Plaintiff-Appellant,
v.
JEFFREY CATOE, Senior Warden, Coffield Unit; WILLIAM WHEAT, Major of Security, Coffield Unit; PAMELA PACE, Practice Manager, UTMB, Coffield Unit; JACINTA ASSAVA, Nurse Practitioner, UTMB, Coffield Unit; JANE AND JOHN DOE; DOCTOR PAUL W. SHRODE; VICKI WHITE, Defendants-Appellees.

          Appeal from the United States District Court for the Eastern District of Texas

          Before OWEN, Chief Judge, JONES, SMITH, STEWART, DENNIS, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.

          JERRY E. SMITH, Circuit Judge

         We hold that in an action brought under 42 U.S.C. § 1983, a district court's interlocutory order denying a motion for appointment of counsel is not immediately appealable under the collateral-order doctrine. The panel opinion in Robbins v. Maggio, 750 F.2d 405 (5th Cir. 1985), is overruled. This appeal is dismissed for want of jurisdiction.

         I.

         Elliott Williams, as a state prisoner, sued prison personnel (the "state") in forma pauperis via § 1983, claiming deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Williams filed a notice of interlocutory appeal from the district court's denial of his motion to appoint counsel. The appeal was briefed on whether Williams satisfies the steep requirements for appointment of counsel in § 1983 cases.[1]

         In its brief, the state acknowledged that any panel would be bound, per the rule of orderliness, to recognize appellate jurisdiction under Robbins.[2] This court granted the state's petition for initial en banc hearing as an efficient means of revisiting the issue of immediate appealability without requiring the matter to percolate uselessly through a panel. We appointed counsel for briefing and oral argument on Williams's behalf.[3]

         II.

         "While the collateral-order doctrine will necessarily allow some appeals, otherwise impermissible under 28 U.S.C. § 1291, the doctrine is a 'narrow exception,' Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 . . . (1994) . . ., 'selective in its membership,' Will v. Hallock, 546 U.S. 345, 350 . . . (2006)."[4] In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), the Court carved out an exception to the final-judgment rule. All agree that the collateral-order doctrine has three essential requirements: "[T]he order must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

         Recognizing that standard, the Robbins panel, 750 F.2d at 412-13, decided that all three prongs had been met. Because the test is conjunctive, we address only the third element. Robbins found it satisfied, explaining that the question "is not whether a claim becomes jurisdictionally unreviewable, but whether it becomes effectively unreviewable." Id. at 413. "[T]here remains a great risk that a civil rights plaintiff may abandon a claim or accept an unreasonable settlement in light of his own perceived inability to proceed with the merits . . . ." Id. at 412. "[I]t is the likelihood that a litigant will not be able effectively to prosecute his claim or to appeal that determines the review-ability of that claim . . . ." Id. at 413.

         That was error that we now correct. In vigorous dissent in Robbins, Judge Garwood pointed out that

[a] party capable of perfecting pro se an appeal from an order denying counsel is likewise capable of so perfecting an appeal after judgment . . . . [T]he large number of pro se tried cases where pro se appeals have been perfected in this Court should suffice to demonstrate that the denial of . . . counsel does not effectively prevent, or ultimately wholly discourage, such cases from being actually tried and appealed.

Id. at 417 (Garwood, J., dissenting).

         Even in the small percentage of cases in which the lack of counsel in the district court may restrain a § 1983 plaintiff in the assertion of his rights, [5] the fact "that a ruling 'may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final . . . judgment . . . has never sufficed'" to breach the collateral-order doctrine. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting Dig. ...


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