Stribling v. Bortolemedi

Filing 178

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/18/14 ordering plaintiff's motion for retrial and for a certificate of appealability 175 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON STRIBLING,

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No. 2:10-cv-3247 CKD P

Plaintiff,
v.

ORDER

BORTOLEMEDI,
Defendant.

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Plaintiff is a California prisoner pro se. A jury trial was recently held in this 42 U.S.C. §

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1983 action, the result of which was a finding in favor of defendant. On November 12, 2014,

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plaintiff filed a motion for retrial and for a certificate of appealability.

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With respect to the motion for a new trial, plaintiff argues that a video of him detailing the

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events at issue was entered into evidence in violation of plaintiff’s Fifth Amendment right not to

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incriminate himself. However, because these civil proceedings are not proceedings in which

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plaintiff can incriminate himself, plaintiff’s Fifth Amendment rights were not violated. Also,

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plaintiff’s assertion that his counsel rendered ineffective assistance in violation of the Sixth

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Amendment by not objecting to the video also has no merit because the Sixth Amendment right

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to effective assistance of counsel does not apply in civil proceedings.

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As for the request for a certificate of appealabilty, it is not necessary to obtain a certificate
of appealability in a 42 U.S.C. § 1983 case (as it is in a 28 U.S.C. § 2254 habeas corpus case) in

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order to appeal. Therefore, plaintiff’s request for a certificate of appealability will be denied as

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unnecessary.1

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Accordingly IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for retrial (ECF No. 175) is denied; and

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2. Plaintiff’s motion for a certificate of appealability is denied.

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Dated: November 18, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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stri3247.rt

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See 28 U.S.C. § 2253.
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