Opinion · Court of Appeals for the Second Circuit
Welch v. Smith
Welch v. Smith, 810 F.2d 40 (2d Cir. 1987)
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1987-01-27
- Topic
- bankruptcy
How later courts describe this case
- holding that “an order denying a plaintiff the appointment of counsel to represent him in pursuing the merits of a suit under § 1983 may not be challenged separately by a direct appeal”
Citator
UpLaw has not yet analyzed Welch v. Smith. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 13 opinions
WELCH v. SMITH,810 F.2d 40(2nd Cir. 1987)
ELBERT WELCH, JUANITA WELCH AND MAE BROWN, PLAINTIFFS, ELBERT WELCH,
PLAINTIFF-APPELLANT, v. HAROLD J. SMITH, SUPERINTENDENT, ATTICA CORRECTIONAL
FACILITY AND MS. MILLS, CHIEF OF MENTAL HYGIENE DEPARTMENT,
DEFENDANTS-APPELLEES.
No. 655, Docket 86-2200.
United States Court of Appeals, Second Circuit.
Submitted January 15, 1987.
Decided January 27, 1987.
Page 41
Nancy Spiegel, Asst. Atty. Gen., N.Y. State Dept. of Law, Albany, N.Y. (Robert Abrams, Atty. Gen. of State of N.Y., Peter H. Schiff, Deputy Sol. Gen., Wayne L. Benjamin, Asst. Atty. Gen., of counsel), for defendants-appellees.
Before KAUFMAN, TIMBERS and MINER, Circuit Judges.
[2] Were this question before us as one of first impression, we would find it of considerable intricacy, in light of the weighty competing interests involved and the varying resolutions of our sister circuits. Since, however, we are convinced that the issue is no longer an open one for a panel in this circuit, although some doubt may linger because our cases on the subject have not been models of clarity, we add these few words.
[3] FACTS
[4] Elbert Welch, a New York state prisoner, filed this civil rights action in 1979. His original claim was that various state officials had deprived him of access to his personal legal papers, but more recently his attention has focused on obtaining a "secret order" of the Appellate Division of the Supreme Court of the State of New York, which, he claims, reversed his state court conviction.
[5] Welch filed a motion for the appointment of counsel, which was referred by the district court to United States Magistrate Edmund T. Maxwell. In a thorough opinion — which evaluated the apparent merits of the complaint, Welch's ability to make an adequate investigation of his claims and present them to the court, the complexity of the applicable law, and the general availability of volunteer counsel in the district — the Magistrate denied the motion. The district judge adopted that ruling, and, after a number of intermediate procedural steps not necessary to recount, Welch filed this appeal.
[6] DISCUSSION
[7] Our first consideration of the issue presented here came inMiller v. Pleasure,296 F.2d 283 (2d Cir. 1961),cert. denied,370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962) (Miller I). We there held that, while the question was a close one, we would resolve the doubt in favor of ruling that the denial of appointed counsel was appealable as a collateral order underCohen v.Beneficial Industrial Loan Corp.,337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
[8] On a later appeal of the same case, however,Miller v.Pleasure,425 F.2d 1205(2d Cir.),cert. denied,400 U.S. 880, 91 S.Ct. 123, 27 L.Ed.2d 117 (1970) (Miller II), we expressly overruledMiller I,basing our decision on the mounting burdens on the courts of appeals and the absence of any direct precedent of the Supreme Court of the United States in favor of appealability.
[9] This would leave the matter closed to any extended discussion, but for our opinion three years later inU.S. v. Birrell,482 F.2d 890(2d Cir. 1973). There, in the course of deciding a quite distinct point, we erroneously referred toMiller Ias stating the law. While our dictum inBirrellwas certainly misleading, it in no way impeached the force of the holding inMiller II.And, indeed, our most recent review ofPage 42the law in a related area assumed without discussion thatMillerIIwas the governing authority,U.S. v. Harris,707 F.2d 653, 658 (2d Cir.),cert. denied,464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983).
[10] Today, we reaffirm explicitly that it is. No case in this circuit subsequent toMiller II,whether of a panel or of theen banccourt, has held that orders such as the one here are appealable. In those circumstances, we think it plain that the law of this circuit is that an order denying a plaintiff the appointment of counsel to represent him in pursuing the merits of a suit under § 1983 may not be challenged separately by a direct appeal.
[11] Since this case presents no question regarding the possible availability of other routes to review (such as by way of application for an extraordinary writ), or of the possible availability of direct review where the request for the assistance of counsel is made in conjunction with an order that is itself appealable (such as preliminary injunction), we leave exploration of those issues to another day.
[12] Accordingly, Welch's attempted appeal is dismissed.