Driver v. Martel

Filing 36

ORDER signed by Judge Garland E. Burrell, Jr on 12/22/09 construing 35 Motion for Certificate of Appealability as notice of appeal; clerk directed to process appeal. (Owen, K) Modified on 12/23/2009 (Owen, K).

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 GARLAND E. BURRELL, JR. United States District Judge vs. MARTEL, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief under 42 U.S.C. § 1983. On September 16, 2009, the undersigned adopted the magistrate judge's findings and recommendations, which recommended that this action be dismissed for failure to state a claim. The Clerk of the Court duly entered judgment. On October 16, 2009, rather than filing a notice of appeal pursuant to Rule 3 of the Federal Rules of Appellate Procedure, plaintiff filed a motion for certificate of appealability pursuant to 28 U.S.C. § 2253, which applies only to habeas corpus proceedings or proceedings under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(a). The court hereby construes plaintiff's October 16, 2009 filing as a notice of appeal and orders the Clerk of the Court to process it accordingly. Dated: December 22, 2009 ORDER BILLY DRIVER, Plaintiff, No. CIV S-08-1910 GEB EFB P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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