Mester v. Paramo et al

Filing 23

ORDER Denying As Moot Request For Certificate Of Appealability (Re Doc. 20 ). Signed by Judge Marilyn L. Huff on 3/28/2013. (All non-registered users served via U.S. Mail Service.) (mdc) Modified on 3/28/2013 - Notified appeals clerk re this filing. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MORRIS MESTER, CDCR #C-77174,
vs.

CASE NO. 3:13-CV-0064-H
(NLS)

Plaintiff,

ORDER DENYING AS MOOT
REQUEST FOR
CERTIFICATE OF
APPEALABILITY

PARAMO, Warden; KELSO,
Receiver; DR. SEELEY, CEO; DR.
WALKER, CME; DR. CASIAN,
M.D.; DR. NEWTON, M.D.; Dr.
CHOKATOS; M.D.; LACURON,
R.N.; BROWN, Sergeant; HURM,
Correctional Officer; DR. GHAUSI,
M.D.; DR. GLAZENER, M.D.,
Defendants.

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On January 8, 2013, Morris Mester (“Plaintiff”), a state inmate proceeding pro

21 se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along with a motion to
22 proceed in forma pauperis (“IFP”). (Doc. No. 1.) On January 18, 2013, the Court
23 granted Plaintiff’s motion to proceed IFP but sua sponte dismissed his complaint, with
24 leave to amend, for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) &
25 1915A(b). (Doc. No. 6 at 9-10.)

Plaintiff subsequently filed a motion for

26 reconsideration, a motion to appoint counsel, and a motion to relate back. (Doc. Nos.
27 12, 15, 17.) On March 8, 2013, the Court denied these motions but granted Plaintiff
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13cv64

1 an additional 60 days leave to file an amended complaint. (Doc. No. 18.) Rather than
2 file an amended complaint, Plaintiff now appeals the Court’s Orders and, on March 25,
3 2013, Plaintiff filed a request for a certificate of appealability pursuant to 28 U.S.C. §
4 2253. (Doc. No. 20.)
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Plaintiff does not need a certificate of appealability to pursue his appeal. The

6 requirement for a certificate of appealability only applies to claims for habeas corpus
7 relief arising under 28 U.S.C. § 2254 or § 2255. See Fed. R. App. P. 22(b); see also
8 Lino v. Small, No. 09-CV-1834, 2012 WL 5506072, at *1 (S.D. Cal. Nov. 13, 2012);
9 Dalluge v. U.S. Dep't of Justice, No. C11-5037, 2011 WL 1675407, at *1 (W.D. Wash.
10 May 4, 2011) ("As this case was brought pursuant to 42 U.S.C. § 1983, there is no
11 requirement for a certificate of appealability."); Jenkins v. Caplan, No. C 02-5603,
12 2010 WL 3057410, at *1 (N.D. Cal. Aug. 2, 2010) ("[A] Certificate of Appealability
13 is inapplicable to a § 1983 action.").
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Accordingly, the Court denies as moot Plaintiff’s request for a certificate of

15 appealability.
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IT IS SO ORDERED.

17 DATED: March 28, 2013

________________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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13cv64