Spencer v. Kenny et al
ORDER: The plaintiff's motions 36 37 for a certificate of appealability are denied. See attached ruling. Signed by Judge Donna F. Martinez on 9/3/13. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NURSE KENNEY, et al.,
CASE NO. 3:11CV50(RNC)
RULING ON PLAINTIFF'S MOTIONS
The plaintiff, proceeding pro se and in forma pauperis, brings
this civil rights action pursuant to 42 U.S.C. § 1983 against
defendant Byars, the sole remaining defendant.
Pending before the
(Doc. ##36, 37.)
The plaintiff states that he anticipates that the defendant's
to-be-filed motion for summary judgment might dispose of his claim,
because the plaintiff is proceeding without counsel and lacks legal
In the pending motions, he seeks a certificate of
appealability "in reserve" so he can appeal in the event the
defendant's summary judgment motion is granted.
The plaintiff's motions are premature and in any event, not
necessary. The defendant has not yet even filed a summary judgment
And in any event, a certificate of appealability is not
"A certificate of appealability is required only in
certain types of cases, typically habeas corpus proceedings brought
pursuant to 28 U.S.C. §§ 2254 and 2255.
See 28 U.S.C. § 2253(c).
A certificate of appealability is not required, however, to appeal
a district court order denying relief for claims brought pursuant
to 42 U.S.C. § 1983."
Johnson v. CCA–Northeast Oh. Corr. Ctr., 21
Fed. App'x 330, 332 (6th Cir. 2001).
See Buchanan v. Oklahoma, 398
appealability is not required in order for state prisoner to appeal
dismissal of his § 1983 claims."); Moore v. Pemberton, 110 F.3d 22,
23 (7th Cir. 1997)(a certificate of appealability is not required
in § 1983 litigation).
However, 19 U.S.C. § 1915(a)(3) provides
that "[a]n appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith."
Nonetheless, any adjudication to this issue is premature.
SO ORDERED at Hartford, Connecticut this 3rd day of September,
Donna F. Martinez
United States Magistrate Judge
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