Smith v. Goord et al

Filing 74

ORDER denying 72 Motion to Appoint Counsel. Signed by Hon. Marian W. Payson on 2/14/2013. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANDRE SMITH,
DECISION & ORDER
Plaintiff,
07-CV-6265CJS
v.
COMMISSIONER GLENN GOORD, et al.,
Defendants.

On May 24, 2007, pro se plaintiff Andre Smith (“plaintiff”) filed a complaint
pursuant to 42 U.S.C. § 1983 alleging that the defendants committed various constitutional
violations, including retaliation, excessive force and failure to protect the plaintiff from harm.
(Docket # 1). On February 11, 2008, plaintiff’s claims against Commissioner Goord and Acting
Superintendent McNamara were dismissed. (Docket # 19). On August 31, 2009, plaintiff’s
Eighth Amendment excessive force claims against Officer Augustine, Officer Gilbert and Officer
Hable were dismissed. (Docket # 56). On February 28, 2012, all of plaintiff’s remaining claims
were dismissed (Docket # 66) and judgment dismissing the complaint in its entirety was entered
on February 29, 2012. (Docket # 67). On July 17, 2012, plaintiff filed a notice of appeal.
(Docket # 71). On that same date, plaintiff filed the pending motion to appoint appellant
counsel. (Docket # 72).
Plaintiff’s motion for appointment of counsel seeks counsel to assist him with his
appeal and was filed the same day that plaintiff filed a notice of appeal. “[T]he filing of a notice
of appeal is an event of jurisdictional significance – it confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects of the case involved in the appeal.”

Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir. 2004) (quoting Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982)), cert. denied, 544 U.S. 1044 (2005). Thus,
plaintiff’s “notice of appeal divests this Court of jurisdiction to consider his motion for the
appointment of appellate counsel.” McBride v. Lafler, 2012 WL 3578736, *2 (E.D. Mich. 2012);
see Ashley v. Wilson, 2010 WL 1949630, *1 (E.D. Mich. 2010) (denying motion for appointment
of appellate counsel because only court of appeals had authority to appoint appellate counsel);
see Stevenson v. Gusman, 2009 WL 1421842, *1 (E.D. La. 2009) (no jurisdiction to determine
motion to appoint appellate counsel). Accordingly, plaintiff’s motion for the appointment of
counsel (Docket # 72) is DENIED.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
February 14 , 2013

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