Moreno v. Cortez-Masto et al

Filing 124

ORDER denying 116 Motion for Certificate of Appealability re 115 Notice of Appeal. (E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit.) Signed by Judge Larry R. Hicks on 10/18/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH MORENO

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Plaintiff,

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v.

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JAMES BACA; et al.,

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Defendants.

3:11-cv-0179-LRH-WGC
ORDER

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Before the court is plaintiff Joseph Moreno’s (“Moreno”) motion for a Certificate of
Appealability. Doc. #116.1
On May 12, 2011, Moreno filed a civil rights complaint against defendants alleging an

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Eight Amendment failure to protect claim. See Doc. #16. Defendants moved for summary judgment

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on his claim (Doc. #84) which was granted by the court (Doc. #113). In response, Moreno appealed

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the court’s order. See Doc. #115. Along with his appeal, Moreno filed the present motion for a

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certificate of appealability. Doc. #116.

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The court has reviewed Moreno’s motion and finds that it is without merit. Moreno

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misconstrues the nature of his complaint. Moreno did not, as he claims in his motion, file a

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complaint under 28 U.S.C. § 2254. Rather, Moreno initiated a civil rights action under

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Refers to the court’s docket number.

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Section 1983. See Doc. ##15, 16. As such, a certificate of appealability is not required to appeal the

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court’s order. See 28 U.S.C. § 2253 (requiring certificates of appealability prior to appealing a

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proceeding only under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)). A

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civil rights action under Section 1983 is not a proceeding under AEDPA. Therefore, the court shall

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deny Moreno’s motion.

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IT IS THEREFORE ORDERED that plaintiff’s motion for a Certificate of Appealability
(Doc. #116) is DENIED.
IT IS SO ORDERED.
DATED this 18th day of October, 2013.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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