Farmer v. Unknown Parties et al

Filing 80

ORDER the court hereby ORDERS that plaintiff's "Motion 73 for Appointment of Counsel for Appeal of Judgment" is DENIED without prejudice. Signed by Senior Judge Robert C Broomfield on 5/17/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John W. Farmer,

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Plaintiff,

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vs.
Dana Youhas, et al.,

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Defendants.
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No. CIV 09-2543-PHX-RCB
O R D E R

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On April 13, 2012, plaintiff pro se filed a Notice of

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Appeal of this court’s dismissal order and judgment filed

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concurrently therewith.

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therewith plaintiff filed the pending “Motion for Appointment

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of Counsel for Appeal of Judgement[.]” Mot. (Doc. 73).

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plaintiff inmate, who is proceeding in forma pauperis,1 asserts

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that he requires appointment of appellate counsel “[i]n order

Not. (Doc. 74).

Contemporaneously

The

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Given that this court did not revoke plaintiff’s informa pauperis
status within the time frame set forth in the Ninth Circuit Court of
Appeal’s Referral Notice, that statue “continue[s] automatically for
[plaintiff’s] appeal pursuant to Fed.R.App.P. 24(a).” Ref. Not. (Doc. 77)
at 1.

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for justice to be served[.]” Id. at 1.

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plaintiff claims that he does not have “any clue as to what is

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going to be required during the course of the appeal.”

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1.

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complete the appeal process if th[at] [C]ourt . . . require[s]

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oral arguments.”

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Among other reasons,

Id. at

Plaintiff is especially concerned about his inability “to

Id.

The only remaining defendant, Dana Youhas, strenuously

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opposes

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constitutional right to counsel in a civil case.”

such

appointment

primarily

because

“there

is

no

Resp. (Doc.

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78) at 2:12.

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th[is] second appeal . . . is frivolous, and lacks merit.”

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at 2:8-9.

Further, defendant Youhas “strongly believes that
Id.

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Plaintiff does not “dispute that he has no legal right to

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counsel[]” on his appeal, but he is seeking to have this court,

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in the exercise of its discretion, to appoint him counsel given

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the purportedly “complex issues” involved.

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1 (internal quotation marks and citation omitted).

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further reiterates his inability to appear for oral argument,

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should the Ninth Circuit require it, and his unfamiliarity with

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appellate practice.

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Reply (Doc. 79) at
Plaintiff

Discussion
It is well settled that the filing of a notice of appeal “is

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an event of jurisdictional significance”

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Youhas did not take into account.

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Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74

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L.Ed.2d 225 (1982) (per curiam).

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notice of appeal divests the district court of jurisdiction with

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respect to all matters involved in the appeal.”
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– a fact defendant

See Griggs v. Provident

“Generally, the filing of a

Fegan v.

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Warden, 2009 WL 1260397, at *1 (E.D.Cal. May 7, 2009) (citing,

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inter alia, Griggs, 459 U.S. at 58, 103 S.Ct. 400, 74 L.Ed.2d

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225.

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appeal on April 13, 2012, divested this court of jurisdiction to

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consider his contemporaneously filed motion for appointment of

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appellate counsel.

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prejudice inmate pro se plaintiff’s motion for, inter alia,

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appointment of counsel, given his pending appeal in the Ninth

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Circuit); see also United States v. Jones, 2010 WL 2787658, at

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*1 (D.Mont. July 14, 2010) (because case was on appeal, district

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court lacked jurisdiction to entertain plaintiff’s motion for

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appointment

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1949630, at *1 (E.D. Mich. May 13, 2010) (and cases cited

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therein)

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jurisdiction to consider motion by pro se inmate plaintiff with

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in forma pauperis status for appointment of appellate counsel).

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In the present case, plaintiff’s filing of his notice of

of

See id. at *2 (citing case) (denying without

counsel);

(notice

Accordingly,

of

the

accord

appeal

court

Ashley

divested

hereby

v.

the

ORDERS

Wilson,

district

that

2010

court

WL

of

plaintiff’s

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“Motion for Appointment of Counsel for Appeal of Judgment” is

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DENIED without prejudice.

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DATED this 17th day of May, 2012.

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Copies to counsel of record and plaintiff pro se

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