UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-60437

(Summary Calendar)

_________________

GEORGE DUNBAR PREWITT, JR, in his own right

and on behalf of his minor son, R.A.P., Ex

Relator State of Mississippi,

Plaintiff-Appellant,

versus

CITY OF GREENVILLE, MISSISSIPPI; MIKE MOORE,

Mississippi Attorney General,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

December 4, 1998

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

George Dunbar Prewitt, Jr., appeals the district court’s order

directing him to retain counsel or suffer dismissal of this suit

without prejudice. We dismiss two of the issues he raises for lack

of appellate jurisdiction and affirm as to the one matter we can

review. 

Prewitt, an attorney, brought numerous lawsuits pro se in the
1 We disagree with Prewitt that his right of access to federal court

was “permanently foreclosed” by the sanctions order. Cf. Martin v. Scott, ___

F.3d ___, ___ n.2, 1998 WL 650992, at *2 n.2 (5th Cir. 1998) (rejecting the

contention that the screening procedure established in 28 U.S.C. § 1915A

restricts the constitutional right of access to federal court).

2 Prewitt apparently neither tried to learn about the sanctions order’s

impact on this case nor attempted to comply with the sanctions order during the

five months or so that passed between removal and the entry of Judge Biggers’

order.

3 In their brief, Greenville and Moore report that this “case has not

been dismissed” and that “[t]he record does not reflect any advocate has entered

an appearance” on Prewitt’s behalf.

-2-

United States District Court for the Northern District of

Mississippi (“Northern District”). In response, Judge Neil

Biggers, Jr., entered a sanctions order, “endorsed by all members

of the court, [that] barr[ed] . . . Prewitt . . . from filing any

new actions in . . . [the Northern District] without obtaining

prior court approval.”1 We affirmed. See Prewitt v. Alexander,

No. 96-60220 (5th Cir. 1997) (per curiam) (unpublished opinion). 

Prewitt filed this civil action pro se in state court after

Judge Biggers entered the sanctions order. The City of Greenville

and Attorney General Moore removed to the Northern District.

Eventually, the case arrived on Judge Biggers’ docket. Judge

Biggers then entered an order announcing that he would dismiss

without prejudice if Prewitt failed to retain counsel within thirty

days.2 

Prewitt appealed Judge Biggers’ latest order.3 In his appeal,

he called for remand to state court based on a failure to plead

standing in the notice of removal and the Eleventh Amendment. He
4 In his initial brief, Prewitt identifies the collateral order

doctrine as the basis for appellate jurisdiction. However, in his reply brief,

he offers further jurisdictional bases. He contends that Judge Biggers’ order

is subject to appellate review as a modification of an injunction. See 28 U.S.C.

§ 1292(a)(1). He also posits that Judge Biggers’ order was immediately

appealable as a final order because it disbarred him unconditionally. See id.

§ 1291. We refuse to consider these additional jurisdictional arguments because

Prewitt was obliged under Federal Rule of Appellate Procedure 28 to state the

basis for appellate jurisdiction in his initial brief. See FED. R. APP. P.

28(a)(2). But cf. 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2974.3

(2d ed. 1996) (recognizing that an argument relating to subject matter

jurisdiction may be raised for the first time in a reply brief).

-3-

also contended that the removal violated his right of access to

Mississippi’s courts. Finally, he maintained that forcing him to

hire an attorney to avert dismissal was an affront to his right to

self-representation. 

We initially consider our jurisdiction to hear Prewitt’s

appeal. Prewitt bears the burden of establishing appellate

jurisdiction. See Gonzalez v. Texas Employment Comm’n, 563 F.2d

776, 777 (5th Cir. 1977). He asserts that the collateral order

doctrine provides us with jurisdiction. Under the collateral order

doctrine, we may exercise jurisdiction over “appeals of non-final

judgments ‘that are conclusive, that resolve important questions

completely separate from the merits, and that would render such

important questions effectively unreviewable on appeal from final

judgment in the underlying action.’”4 Carter v. Fenner, 136 F.3d

1000, 1004 n.7 (5th Cir. 1998).

Prewitt’s jurisdictional argument partly succeeds. We are

persuaded that his charge of a denial of the right to proceed pro

se comes within the collateral order doctrine. See Devine v.
-4-

Indian River County Sch. Bd., 121 F.3d 576, 578-81 (11th Cir. 1997)

(holding denial of motion to proceed pro se to fall within the

collateral order doctrine); C.E. Pope Equity Trust v. United

States, 818 F.2d 696, 697 (9th Cir. 1987) (deeming a claim of a

violation of the right to self-representation to come within the

collateral order doctrine); O’Reilly v. New York Times Co., 692

F.2d 863, 866-67 (2d Cir. 1982) (finding denial of motion to

proceed pro se appealable under the collateral order doctrine);

15B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3914.21 (2d

ed. 1992) (supporting application of the collateral order doctrine

to denials of motions to proceed pro se). We, however, cannot say

the same as to the other two issues Prewitt raises. Prewitt offers

no discussion to support finding the collateral order doctrine

applicable to his challenges to the removal’s propriety. See FED.

R. APP. P. 28(a)(2) (requiring more than a bare statement on the

basis of appellate jurisdiction in the appellant’s initial brief);

see also 16A WRIGHT ET AL., supra (describing the statement of

appellate jurisdiction in the appellant’s initial brief as

“elaborate”). As to the claim that the removal interfered with the

right of access to state court, the decision on which Prewitt

relies, Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983),

holds the collateral order doctrine to encompass orders denying

press access to ongoing litigation; Newman evinces silence as to

whether or not orders infringing on the right of access to state
-5-

court may be appealed under the collateral order doctrine. 

We now turn to the merits of the issue over which we have

jurisdiction. Prewitt maintains that conditioning the prosecution

of this case on him retaining a lawyer, as Judge Biggers did,

contravened his right to proceed pro se under the Mississippi

Constitution. Article 3, Section 25, of the Mississippi

Constitution provides: “No person shall be debarred from

prosecuting or defending any civil cause for or against him or

herself, before any tribunal in the state, by him or herself, or

counsel, or both.” MISS. CONST. art. 3, § 25; see also Bullard v.

Morris, 547 So.2d 789, 790 (Miss. 1989) (“[I]t is without question

that the Mississippi Constitution permits a person to represent

himself, pro se, in a civil proceeding.”). In Prewitt’s view, this

state constitutional guarantee precluded restricting his federal

right to proceed pro se in a removed case, such as this one. See

28 U.S.C. § 1654 (“In all courts of the United States the parties

may plead and conduct their own cases personally or by counsel as,

by the rules of such courts, respectively, are permitted to manage

and conduct causes therein.”).

We find no merit to Prewitt’s argument. The right to selfrepresentation under the Mississippi Constitution loses effect upon

a suit’s removal to federal court. See Granny Goose Foods, Inc. v.

Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of

Alameda County, 415 U.S. 423, 437, 94 S. Ct. 1113, 1123, 39 L. Ed.
-6-

2d 435, ___ (1974) (“[O]nce a case has been removed to federal

court, it is settled that federal rather than state law governs the

future course of proceedings . . . .”). We, therefore, find that

Judge Biggers’ order did not deprive Prewitt of his right to selfrepresentation under the Mississippi Constitution.

We hold that the order directing Prewitt to retain counsel or

suffer dismissal without prejudice did not violate the right of a

civil litigant under the Mississippi Constitution to proceed pro

se. Accordingly, we AFFIRM Judge Biggers’ order. We DISMISS all

other questions presented by Prewitt for lack of jurisdiction.