Colleen M. Nutter v. Kansas State University, and Its Representatives, Lou Ann Smith, Judith E. Banks, 930 F.2d 34, 10th Cir. (1991)
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Scribd Government DocsColleen M. Nutter v. Kansas State University, and Its Representatives, Lou Ann Smith, Judith E. Banks, 930 F.2d 34, 10th Cir. (1991)
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Scribd Government Docs930 F.
2d 34
Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished
opinions and orders and judgments have no precedential value
and shall not be cited except for purposes of establishing the
doctrines of the law of the case, res judicata, or collateral
estoppel.
Colleen M. NUTTER, Plaintiff-Appellant,
v.
KANSAS STATE UNIVERSITY, and its representatives,
Defendant-Appellee,
Lou Ann Smith, Defendant-Appellee,
Judith E. Banks, Defendant-Appellee.
No. 90-3294.
United States Court of Appeals, Tenth Circuit.
Feb. 20, 1991.
Before McKAY, SEYMOUR and EBEL, Circuit Judges.
ORDER AND JUDGMENT*
EBEL, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Therefore, the case
is ordered submitted without oral argument.
The underlying claim is a civil rights action under 42 U.S.C. Sec. 2000e-5.
Apparently, appellant alleges that she was discriminated against by Kansas
State University, its agents, and two other named individuals. The relief she
seeks is a degree, financial aid, credit restored, and monetary restitution. The
lower court allowed appellant to proceed in forma pauperis, but denied her
application for an appointment of counsel. See Nutter v. Kansas State
University, et al, Minute Order, No. 90-1436 (Oct. 2, 1990). It is this denial that
appellant appeals.
3
In this circuit the law is clear that a denial of appointment of counsel by the
district court is not considered a final judgment, and therefore we must dismiss
such an appeal. The reasoning of this circuit, which applies in this case, is
explained at length in Cotner v. Mason, 657 F.2d 1390 (1981):
Generally, interlocutory orders of district courts are not permitted appellate
review prior to the entry of final judgment....
Appellant's underlying cause of action is not complicated, and we are aware of
no circumstances which would preclude this pro se litigant from presenting
h[er] claim to the district court and, if need be, to this court after the entry of
final judgment. At that point this court could fully review the district court's
denial of the motion for appointment of counsel to determine whether the
district court abused its discretion.
Denying immediate review of the order denying appointment of counsel will
not cause crucial collateral claims to be lost and potentially irreparable injuries
to be suffered.... Because these asserted rights can be fully remedied by a postjudgment reversal and a new trial, denying immediate appeal does not cause
irreparable injuries or destroy the legal and practical value of these rights. Id. at
1391-1392 (quotation marks omitted).
We realize that there is a split among the circuits on whether a denial of a
request for appointment of counsel under 28 U.S.C. Sec. 1915(d) or 42 U.S.C.
Sec. 2000e-5(f)(1) is immediately appealable. See id. at 1392 (discussing
various positions of other circuits); see generally Annotation, Appealability of
Federal Court Order Denying Motion for Appointment of Counsel for Indigent
Party, 67 A.L.R.Fed. 925 (1984 & Supp.1990). However, [t]his court has
consistently held that, absent extraordinary circumstances, orders denying
appointment of counsel in civil cases are not immediately appealable as of
right." Id. Because no such circumstances have been demonstrated by appellant
in this case, the appeal is DISMISSED for lack of jurisdiction. The mandate
shall issue forthwith.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
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