Paul Joseph Kuster v. Sherman Block, Sheriff, 773 F.2d 1048 (9th Cir. 1985). · Go Syfert
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Paul Joseph Kuster v. Sherman Block, Sheriff, 773 F.2d 1048 (9th Cir. 1985). Cases Citing This Book View Copy Cite
27 citation events (6 in the last 25 years) across 4 distinct courts.
Strongest positive: Lewis Harry, Jr. v. Diane Bohuszewicz, No. 20-16657 (9th Cir. Mar. 24, 2021) · Strongest negative: Ponce-Bran v. Trs. of California State Univ. & Colleges, 48 Cal. App. 4th 1656 (Cal. Ct. App. 1996)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
How cited ↗
Cited for
At page 1049 Evaluating separation of counsel appointment from merits10 citing casesorder denying appointment of counsel is not a final appealable order2 citing courts put it this way
  • Lewis Harry, Jr. v. Diane Bohuszewicz, No. 20-16657 (9th Cir. Mar. 24, 2021).unpublished
    (order denying appointment of counsel is not a final appealable order)
  • Ralph Blakely v. Gregory Jones, No. 18-35647 (9th Cir. Dec. 3, 2018).unpublished
    (order denying appointment of counsel is not a final appealable order)
  • Hennagan v. Mallory, 42 F. App'x 982 (9th Cir. 2002).unpublished
    (holding that denial of counsel in section 1983 action is not immediately appealable)
  • McClure v. City of Long Beach, 104 F.3d 365 (9th Cir. 1996).unpublished
    Id.; Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985).
  • John Doe I, Jane Doe, & John Doe II 1 v. Richard Burton, Comm'r, Alaska Dep't of Pub. Saf. Bruce M. Botelho, Alaska Attorney Gen., 85 F.3d 635 (9th Cir. 1996).unpublished 3 cites
    This Court has noted that an interlocutory order must meet three conditions to fit within the exception: 7 The order (1) must conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits…
  • Allen Leroy Peterson v. Chase Riveland, 34 F.3d 1073 (9th Cir. 1994).unpublished
    Sec. 1291 , nor an appealable collateral order, see Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985).
  • Mariyam Akmal v. Centerstance Inc., 503 F. App'x 538 (9th Cir. 2013).unpublished
    See Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985); see also Wilbom v. Escalderon, 789 F.2d 1328 , 1330 & n. 2 (9th Cir.1986) (recognizing that while orders denying appointment of counsel under Title VII may be immediately appealed, d…
  • Ester Burnett v. Doctor Bruce Faecher, 361 F. App'x 900 (9th Cir. 2010).unpublished
    See Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985).
  • Cummins v. State of Arizona, 122 F.3d 1070 (9th Cir. 1997).unpublished
    See Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985). 4 Even assuming that the district court erred by denying Cummins's motion for IFP status as untimely, Cummins's appeal from the denial of her IFP motion is moot because no effective…
  • Everett v. Lozano, 67 F.3d 306 (9th Cir. 1995).unpublished 2 cites
    See Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985).
At page 1048 EDWARD C. REED, Jr., District Judge: Appellant Kuster has appealed from the District Court order denying his application that counsel be appointed to aid him…2 citing casesopening of page *1048 (no citing court says what it cites this page for)
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Paul Joseph KUSTER, Plaintiff-Appellant,
v.
Sherman BLOCK, Sheriff, Defendant-Appellee
84-5606.
Court of Appeals for the Ninth Circuit.
Oct 8, 1985.
Published opinion
773 F.2d 1048
1985 U.S. App. LEXIS 23470
Paul Joseph Kuster, in pro. per., Frederick R. Bennett, Cty. Counsel, Los Angeles, Cal., for defendant-appellee.
Alarcon, Poole, Reed.
Cited by 19 opinions  |  Published
EDWARD C. REED, Jr., District Judge:

Appellant Kuster has appealed from the District Court order denying his application that counsel be appointed to aid him in his civil rights action for damages. We dismiss the appeal for lack of jurisdiction.

The basis for appeal is 28 U.S.C. § 1291, which grants to courts of appeal jurisdiction over appeals from final decisions of United States district courts. The finality requirement embodied in § 1291 is jurisdictional in nature. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). Where the parties fail to raise an issue as to the finality of a district court’s order, the appellate court must determine sua sponte whether its jurisdiction has been invoked properly. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 843 (9th Cir.1985). Since the District Court’s order here did not end the litigation on the merits, it is interlocutory. In order to be appealable it must fit within the collateral order exception for interlocutory orders recognized in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

[*1049] An interlocutory order must meet a minimum of three conditions in order to possess Cohen collateral order appealability. The order (1) must 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. Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984) (pretrial orders disqualifying counsel are not immediately appealable under 28 U.S.C. § 1291).

The second Cohen condition is not met in this case. Whether a pro se plaintiff's case is meritorious and whether he is capable of preparing and presenting it are questions that cannot be assessed fairly until the substance of both his ease and that of the defendant become known. See Richardson-Merrell, Inc. v. Koller, — U.S. -, -, 105 S.Ct. 2757, 2765, 83 L.Ed.2d 226 (1985), vacating and remanding 737 F.2d 1038 (D.C.Cir.1984) (an order disqualifying counsel in a civil case is not completely separate from the merits of the case); Smith-Bey v. Petsock, 741 F.2d 22, 24-25 (3rd Cir.1984) (an order denying appointment of counsel in a civil case is not entirely separate from the merits).

In Weygandt v. Look, 718 F.2d 952 (9th Cir.1983), we stated, at page 954:

In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. (Citations omitted). These considerations are not separate and distinct from the underlying claim, but are inextricably enmeshed with them.

The same reasoning is applicable in a civil rights action brought under 42 U.S.C. § 1983, as is the situation here. Consequently, because the order of the district court denying appointment of counsel does not resolve an important issue entirely separate from the merits of appellant’s case, we must dismiss for lack of jurisdiction.

APPEAL DISMISSED.