Thomas v. Hackel

Filing 12

ORDER denying 9 Motion for Certificate of Appealability. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN THOMAS,
Plaintiff,
v.

Case No. 15-11261
HON. TERRENCE G. BERG

WILLIAM H. HACKEL, III,
Defendant.
____________________________________/
ORDER DENYING PLAINTIFF’S
MOTION FOR CERTIFICATE OF APPEALABILITY (DKT. 9)
This matter is before the Court on Plaintiff John Thomas’ July 30, 2015
motion for a certificate of appealability. (Dkt. 9.) On May 27, 2015, the Court
dismissed his 42 U.S.C. § 1983 civil rights complaint on grounds that it failed to
state a claim upon which relief may be granted and because Defendant William H.
Hackel, III, a Michigan state court judge, was entitled to judicial immunity (Dkt. 5,
p. 5). The Court denied Plaintiff’s motion for reconsideration on June 30, 2015 (Dkt.
8), and Plaintiff now requests a certificate of appealability (Dkt. 9) and has filed a
notice of appeal (Dkt. 10). Because a certificate of appealability is not required to
appeal from an order denying relief in a § 1983 action, Plaintiff’s motion will be
DENIED.
Under the Antiterrorism and Effective Death Penalty Act of 1996, a
certificate of appealability is required to appeal a judgment in a habeas corpus

action where the petitioner’s complaint pertains to detention arising out of a state
court process. 28 U.S.C. § 2253(c)(1). A certificate of appealability, however, is not
required to appeal from an order denying relief in a § 1983 action. Johnson v. CCANortheast Ohio Correctional Center, 21 Fed. App’x. 330, 332 (6th Cir. 2001); see also
Kincaid v. Ruhlman, No. 13-13798, 2015 WL 349032, at *1 (E.D. Mich. Jan. 23,
2015) (certificate of appealability unnecessary for prisoner civil rights appeal);
Rivera v. Granholm, No. 08–12722, 2009 WL 650374, at *1 (E.D. Mich. Mar.13,
2009) (certificate of appealability not required for prisoner civil rights appeal).
Because there is no need for a certificate of appealability to appeal a § 1983
case, Plaintiff’s motion for a certificate of appealability is DENIED. It should be
noted, however, that the Court concluded in its Order dismissing Plaintiff’s
Complaint for failure to state a claim that an appeal from its Order could not be
taken in good faith (Dkt. 5, p. 5). Consequently, Plaintiff is not permitted to proceed
in forma pauperis on appeal. 28 U.S.C. § 1915(a)(3).
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: August 5, 2015
Certificate of Service
I hereby certify that this Order was electronically submitted on August 5,
2015, using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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