WELCH
v.
SMITH, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, ET AL.; MILLER V. SIMMONS ET AL.

U.S. | 1987-10-13
Nos. 86-6884; No. 86-7132
with whom Justice Blackmun joins,
484 U.S. 903 Supreme Court of the United States (1987) Positive Treatment
Cited by 17 cases
Dissent
Justice White,

Justice White,

with whom Justice Blackmun joins,

dissenting.

The issue here is whether an order denying a civil rights plaintiff’s motion for appointment of counsel is immediately appeal-able under 28 U.

S. C. § 1291, as interpreted by Cohen v. Beneficial Industrial Loan Co., 337 U. S. 541 (1949), and its progeny. In both of these cases petitioners brought their actions under 42 U.

S. C. § 1983, and sought appointment of counsel under 28 U.

S. C. § 1915(d).

The District Courts denied those motions and petitioners appealed. In Welch v. Smith, although stating that if the question were before the court “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,” 810 F. 2d 40, 41 (1987), a panel of the Second Circuit held that the denial was not immediately appealable under its earlier decision in Miller v. Pleasure, 425 F. 2d 1205, cert. denied, 400 U. S. 880 (1970), which itself had overruled an even earlier decision concluding the opposite, Miller v. Pleasure, 296 F. 2d 283 (1961), cert. denied, 370 U. S. 964 (1962).

The position of the Second and Fourth Circuits, which is consistent with that of a number of the Circuits, conflicts with the position of two other Circuits. Jackson v. Dallas Police Dept., 811 F. 2d 260 (CA5 1986) (per curiam); Slaughter v. Maplewood, 731 F. 2d 587 (CA8 1984).

The confusion in this area is further exemplified by the Ninth Circuit’s position that civil rights plaintiffs proceeding under Title VII of the Civil Rights Act of 1964 may immediately appeal a denial of their motion for appointment of counsel, while those proceeding under § 1983 may not. Compare Wilborn v. Escalderon, 789 F. 2d 1328 (1986), with Bradshaw v. Zoological Society of San Diego, 662 F. 2d 1301 (1981).

I have previously dissented from denial of certiorari in a case raising this question in the context of suits filed under Title VII and § 1983, Henry v. Detroit Manpower Dept., 474 U. S. 1036 (1985).

The continued split amongst the Circuits on this issue warrants our granting certiorari.

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Cited By (17 total)

  • United States v. Kojo Sababu, 891 F.2d 1308 (7th Cir. 1989)
    …sufficient to raise a significant doubt about the propriety of the government’s actions in the investigation or prosecution of this case” to warrant an investigatory hearing. See United States v. Swiatek, 819 F. 2d 721 (7th Cir.1987), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987). VI. Garcia’s Privacy Claim Defendant Garcia contends that the district court erred in admitting into evidence nine taped telephone conversations between her and Lopez, and that because these tapes severely pr…
  • United States v. Miller, 891 F.2d 1265 (7th Cir. 1989)
    …834 F. 2d 1334 (7th Cir.1987); United States v. Shoffner, 826 F. 2d 619 (7th Cir.), cert. denied sub nom. Stange v. United States, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987); United States v. Swiatek, 819 F. 2d 721 (7th Cir.), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); United States v. Bruun, 809 F. 2d 397 (7th Cir.1987); United States v. Podolsky, 798 F. 2d 177 (7th Cir.1986); United States v. Belzer, 743 F. 2d 1213 (7th Cir.1984), cert. denied sub nom. Clements v. United St…
  • United States v. Jewel, 947 F.2d 224 (7th Cir. 1991)
    …denied a motion for a mistrial based on the same statement. When prosecutorial statements are challenged as based on facts not in evidence, we review them under the two-part test in United States v. Swiatek, 819 F. 2d 721 (7th Cir.), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987): First, we determine whether, considered in isolation, the challenged remark was improper. If so, we reexamine the improper remark in light of the entire record to determine whether the remark deprived the defe…

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