Dearwester v. Sacramento County Sheriff's Department

Filing 89

ORDER signed by Magistrate Judge Deborah Barnes on 09/07/17 DENYING 88 Motion for Certificate of Appealability. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK LEE DEARWESTER,

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No. 2:13-cv-2064 MCE DB P

Plaintiff,
v.

ORDER

SACRAMENTO COUNTY SHERIFF’S
DEPARTMENT,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff alleges defendant’s establishment of a postcard-only

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mail policy violated his First Amendment rights. Plaintiff filed a document on August 28, 2017

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entitled “Motion for Certificate of Appealability of 08/09/17 Order.” (ECF No. 88.) The August

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9 order affirmed the undersigned’s denial of plaintiff’s motion for the appointment of counsel.

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(ECF Nos. 87, 80.)

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Plaintiff is advised that a certificate of appealability is only necessary in a habeas corpus

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proceeding. See 28 U.S.C. § 2253. In this civil rights action, plaintiff need not seek permission

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from this court to appeal. That said, plaintiff is further advised that the Court of Appeals does not

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have jurisdiction to consider the appeals of orders that are not final or appealable. See 28 U.S.C.

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§ 1291; WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). The Ninth
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Circuit has held that the district court’s denial of a motion for the appointment of counsel in a

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civil rights case is not a final or appealable order under 28 U.S.C. § 1291. See Kuster v. Block,

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773 F.2d 1048, 1049 (9th Cir. 1985); see also Akmal v. Centerstance Inc., 503 F. App’x 538 (9th

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Cir. 2013); Burnett v. Faecher, 361 F. App’x 900 (9th Cir. 2010).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for a certificate of

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appealability (ECF No. 88) is denied.

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Dated: September 7, 2017

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DLB:9
DLB1/prisoner-civil rights/dear2064.deny coa

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