Braley v. Wasco State Prison, et al

Filing 24

ORDER denying 21 Motion for Certificate of Appealability signed by Magistrate Judge Gary S. Austin on 8/18/2009. (Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 vs. (Doc. 21.) WASCO STATE PRISON, et al., Defendants. / Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On August 17, 2009, Plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals and a request for a certificate of appealability. (Docs. 21, 22.) The requirement for the issuance of a certificate of appealability on appeal arises under 28 U.S.C. § 2253, which provides: (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from -(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. THOMAS D. BRALEY, Plaintiff, 1:07-cv-01423-OWW-GSA-PC ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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28 U.S.C. § 2253. Because § 2253 only applies to petitions for writ of habeas corpus, and plaintiff is proceeding with a civil rights action under 42 U.S.C. § 1983, plaintiff's request for a certificate of appealability shall be denied. Accordingly, IT IS HEREBY ORDERED that plaintiff's request for a certificate of appealability, filed on August 17, 2009, is DENIED.

IT IS SO ORDERED. Dated: 6i0kij

August 18, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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