Newman v. Coats et al

Filing 37

ORDER denying 33 Motion for Certificate of Appealability. Signed by District Judge Patrick J Duggan. (MOre)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION VINCENT NEWMAN, Plaintiff, v. J. COATS, RUO LUEBS, and RUM CHARLES INGRAM, Defendants. ________________________________/ ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan on May 20, 2009. PRESENT: HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE On January 28, 2008, Plaintiff, a pro se prisoner, commenced this civil rights action against Defendants pursuant to 42 U.S.C. § 1983. Defendants subsequently filed a motion to dismiss and/or for summary judgment, which this Court granted in an opinion and order entered on April 30, 2009. On the same date, the Court entered a judgment in favor of Defendants and against Plaintiff. On May 14, 2009, Plaintiff filed a notice of appeal. Plaintiff, who indicates his intent to proceed on appeal without prepayment of fees, also filed a motion for certificate of appealability. Plaintiff, however, has not submitted the documentation necessary to apply to proceed without prepayment of fees. Under the Antiterrorism and Effective Death Penalty Act of 1996, a certificate of CASE NO. 08-10388 HONORABLE PATRICK J. DUGGAN

appealability is required to appeal a judgment in a habeas corpus action brought pursuant to 28 U.S.C. §§ 2254 or 2255. 28 U.S.C. § 2253(c)(1). In habeas corpus proceedings, the petitioner is challenging his or her state or federal conviction and/or sentence. The present action is a civil rights action brought pursuant to § 1983. A certificate of appealability is not required to appeal an order denying relief in a § 1983 case.1 Johnson v. CCA-Northeast Ohio Corr. Ctr., 21 Fed. App'x 330, 332 (6th Cir. 2001) (unpublished opinion) (citing Bradshaw v. Story, 86 F.3d 164, 166 (1996)). The Court therefore denies Plaintiff's motion for certificate of appealability as unnecessary. SO ORDERED.
s/PATRICK

J. DUGGAN UNITED STATES DISTRICT JUDGE Copies to: Vincent Newman, #230822 Chippewa Correctional Facility 4269 W M-80 Kincheloe, MI 49784 Julia R. Bell, Esq.

The Prison Litigation Reform Act, however, provides that "an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a). The Court will determine whether Plaintiff's appeal is taken in good faith, but only once he submits the documentation necessary to apply to proceed without prepayment of fees. (See Doc. 36 (notice to Plaintiff of failure to pay the filing fee or submit the documentation necessary to apply to proceed without prepayment of fees).) 2

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