Huckabee v. Medical Staff at CSATF et al

Filing 119

ORDER DISREGARDING 109 Motion for Certificate of Appealability; ORDER DIRECTING Clerk of Court to Serve Copy to Ninth Circuit Court of Appeals signed by Magistrate Judge Barbara A. McAuliffe on 1/24/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY CRAIG HUCKABEE,

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Plaintiff,
v.
MEDICAL STAFF at CSATF, et al.,
Defendants.

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Case No.: 1:09-cv-00749-LJO-BAM (PC)
Appeal No. 14-15068
ORDER DISREGARDING MOTION FOR
CERTIFICATE OF APPEALABILITY
(ECF No. 109)
ORDER DIRECTING CLERK OF COURT TO
SERVE COPY TO NINTH CIRCUIT COURT OF
APPEALS

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Plaintiff Anthony Craig Huckabee (“Plaintiff”) is a state prisoner, currently proceeding pro se,
in this civil rights action pursuant to 42 U.S.C. § 1983.
On August 21, 2013, the Magistrate Judge issued Findings and Recommendations that the

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motion to dismiss filed by Defendants Diaz, Wu, Bhatt and Nguyen be granted in part and denied in

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part. (ECF No. 75.) On October 17, 2013, Plaintiff filed objections to the Findings and

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Recommendations. (ECF No. 94.) The district court considered Plaintiff’s objections and partially

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adopted the Findings and Recommendations on December 10, 2013. Pursuant to that order, the Court

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(1) dismissed Defendant Warden Diaz from this action; (2) dismissed Plaintiff’s state law causes of

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action; (3) dismissed Plaintiff’s claims against Defendants Nguyen and Wu for events occurring prior

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to April 23, 2005; and (4) dismissed Plaintiff’s claims against Defendant Bhatt as barred by the statute

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of limitations. (ECF No. 96.)
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On December 26, 2013, Plaintiff filed a motion for reconsideration of the district court’s order

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partially adopting the findings and recommendations. (ECF No. 101.) The motion for reconsideration

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currently is pending.
Thereafter, on January 13, 2014, Plaintiff field a notice of interlocutory appeal to the Court of

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Appeals for the Ninth Circuit, along with a motion for the issuance of a certificate of appealability

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pursuant to Federal Rule of Appellate Procedure 22(b). (ECF Nos. 108, 109.)
Rule 22 of the Federal Rules of Appellate Procedure requires that an applicant who files a

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notice of appeal in a habeas proceeding must obtain a certificate of appealability under 28 U.S.C. §

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2253(c), or a statement why a certificate should not issue, from the district judge who rendered

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judgment in the action. Fed. R. App. P. 22(b). The district clerk must send the certificate or statement

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to the court of appeals along with the notice of appeal. Id. Plaintiff has requested a certificate of

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appealability for the notice of appeal he filed in this action on January 13, 2014. However, Plaintiff’s

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appeal concerns a civil rights action under 42 U.S.C. § 1983, not a habeas proceeding. Therefore,

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Rule 22 does not apply to Plaintiff’s appeal, and Plaintiff’s application for a certificate of appealability

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shall be disregarded. Plaintiff is advised that his appeal was processed and forwarded to the Ninth

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Circuit on January 14, 2014. (ECF No. 110.)

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Motion for Issuance of a Certificate of Appealability is DISREGARDED;

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The Clerk is DIRECTED to serve a copy of this order on the Ninth Circuit.

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and

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 24, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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