Opinion · Court of Appeals for the Second Circuit

Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., Dba Sears Real Estate and Charles W. Sears, Appeal of Charles W. Sears

Sears, Roebuck & Co. v. Charles W. Sears Real Est., Inc., Dba Sears Real Est. & Charles W. Sears, Appeal of Charles W. Sears, 865 F.2d 22 (2d Cir. 1988)

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1988-12-27
Topic
bankruptcy

How later courts describe this case

  • denying petition to proceed IFP because petitioner and his 14 wife had a combined annual income of between $34,000 and $37,000
  • denying petition to 15 proceed IFP because petitioner and his wife had a combined annual income of between $34,000 16 and $37,000
  • denying petition to 18 proceed IFP because petitioner and his wife had a combined annual income of between $34,000 19 and $37,000
  • denying in forma pauperis 3
  • status where applicant had a net income of approximately $20,000
  • denying in forma pauperis 17 status where applicant had a net income of approximately $20,000
  • affirming decision not to appoint counsel where civil litigant not indigent for purposes of proceeding in forma pauperis
  • denying petition to 16 proceed IFP because petitioner and his wife had a combined annual income of between $34,000 17 and $37,000

Citator

UpLaw has not yet analyzed Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., Dba Sears Real Estate and Charles W. Sears, Appeal of Charles W. Sears. The absence of a flag is not a finding that it is good law.

Cited by
196 opinions
SEARS, ROEBUCK v. CHARLES W. SEARS REAL EST.,865 F.2d 22(2nd Cir. 1988)
SEARS, ROEBUCK AND CO., PLAINTIFF-APPELLEE, v. CHARLES W. SEARS REAL ESTATE,
INC., DBA SEARS REAL ESTATE AND CHARLES W. SEARS, DEFENDANTS.
APPEAL OF CHARLES W. SEARS, DEFENDANT-APPELLANT.
No. 496, Docket 88-7613.
United States Court of Appeals, Second Circuit.
Submitted December 13, 1988.
Decided December 27, 1988.
Page 23
Charles W. Sears, Utica, N.Y., pro se.

William R. Hansen, Mary Gronlund, Nims, Howes, Collison Isner, New York City, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of New York.
Before VAN GRAAFEILAND, MESKILL and MINER, Circuit Judges.
PER CURIAM:
[1] This is an appeal from an order of the United States District Court for the Northern District of New York, Munson, C.J., dated June 23, 1988, 686 F.Supp. 385. Appellantpro seCharles W. Sears contends that the district court erred in denying him leave to proceedin forma pauperisunder28 U.S.C. § 1915(a) (1982) and in denying appointment of counsel under28 U.S.C. § 1915(d).

[2] The judgment is affirmed.

[3] An interlocutory appeal may be taken from an order denying leave to proceedin forma pauperisunder the doctrine ofCohenv. Beneficial Industrial Loan Corp.,337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).See, e.g., Tripati v. First NationalBank Trust,821 F.2d 1368, 1369 (9th Cir. 1987);Potnick v.Eastern State Hospital,701 F.2d 243(2d Cir. 1983). The district court's decision that Sears was not indigent, and therefore that he was not entitled to proceedin forma pauperis,was not erroneous. Sears estimates his net income at approximately $20,000. We cannot say that the district court erred in holding that Sears did not establish indigence. Although section 1915 does not require a party to prove destitution, Sears has not demonstrated the poverty found in cases, such asPotnick,that have grantedin forma pauperisstatus.

[4] The district court's decision not to request counsel for Sears, however, is not a final decision under28 U.S.C. § 1291(1982) or theCohencollateral order doctrine, and therefore it normally would not be appealable.See Welch v. Smith,810 F.2d 40(2d Cir.),cert. denied,___ U.S. ___, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987);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).

[5] In the interest of judicial economy, however, we reach the merits of this issue.See Barhold v. Rodriguez,863 F.2d 233, 237 (2d Cir. 1988). The same factors that the district court weighed in determining whether to grant Searsin forma pauperisstatus are relevant to its decision on appointment of counsel. As we must examine the one issue, we see no reason to delay decision on the other, where both questions involve an examination of the financial resources available to the party seeking relief. Consequently, we will decide the question of the right to appointed counsel.

[6] Under section 1915(d), the trial judge has "[b]road discretion ... in deciding whether to appoint counsel."Hodge v. PoliceOfficers,802 F.2d 58, 60 (2d Cir. 1986). Although Chief Judge Munson addressed thein forma pauperisissue without identifying the factors he considered in denying appointment of counsel, it is clear that the statute only allows appointment where a litigant is indigent.See id.(section 1915(d) provides "indigents" with meaningful access to the courts). We review a decision under section 1915(d) for abuse of discretion.SeeOliva v. Heller,Page 24839 F.2d 37, 40 (2d Cir. 1988);Hodge,802 F.2d at 60. Chief Judge Munson held that Sears is not indigent in the sense contemplated by section 1915; as this decision was not erroneous,see supra,the decision not to appoint counsel for Sears was not an abuse of discretion.

[7] We have considered appellant's other contentions and find them to be without merit.

[8] For the foregoing reasons, we affirm the order of the district court.