Garza v. Harmon et al

Filing 19

ORDER Disregarding 18 Motion for Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 4/29/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAUL GARZA,

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Plaintiff,

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v.

1:18-cv-00140-LJO-GSA-PC
ORDER DISREGARDING MOTION FOR
CERTIFICATE OF APPEALABILITY
(ECF No. 18.)

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S. HARMON, et al.,
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Defendants.
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I.

Plaintiff, Raul Garza (“Plaintiff”), is a state prisoner proceeding pro se and in forma

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BACKGROUND

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

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On March 8, 2018, the court dismissed this action, without prejudice, based on

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Plaintiff's failure to exhaust administrative remedies before filing suit, and judgment was

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entered. (ECF Nos. 14, 15.) On April 25, 2018, Plaintiff filed a motion for a certificate of

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appealability. (ECF No. 18.)

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II.

RULE 22 OF THE FEDERAL RULES OF APPELLATE PROCEDURE

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Rule 22 of the Federal Rules of Appellate Procedure requires that an applicant who files

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a notice of appeal in a habeas proceeding must obtain a certificate of appealability under 28

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U.S.C. § 2253(c), or a statement why a certificate should not issue, from the district judge who

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rendered judgment in the action. Fed. R. App. P. 22(b) (emphasis added).
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Here, Plaintiff requests a certificate of appealability for the Ninth Circuit Court of

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Appeals. However, because an appeal in this case would concern a civil rights action under §

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1983 and not a habeas proceeding, Rule 22 is not applicable. Therefore, Plaintiff=s motion for a

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certificate of appealability shall be disregarded.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s motion for a

certificate of appealability, filed on April 25, 2019, is DISREGARDED.

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IT IS SO ORDERED.
Dated:

April 29, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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