Green v. Uhler

Filing 8

ORDER denying 6 Motion for Certificate of Appealability. Plaintiff is granted an additional thirty (30) days from the date of this order to pay the filing fee. If the fee is not paid, this action is dismissed without further order of the Court. Signed by Hon. Charles J. Siragusa on 8/24/2016. (Copy mailed to plaintiff.) (LB)

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHAWN GREEN,
Plaintiff,

-v-

16-CV-6168CJS
ORDER

DONALD G. UHLER, Superintendent of
Upstate Correctional Facility,
Defendant.

Plaintiff, Shawn Green, has filed a motion requesting a certificate of appealability
from this Court's Order recharacterizing his action and denying him permission to proceed
in forma pauperis because he has three times brought an action or appeal in a court of

the United States that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). (Docket
No. 5). For the reasons stated below, Plaintiff's application is denied.
Plaintiff, acting pro se, filed an action seeking relief pursuant to 28 U.S.C. § 2254,
alleging that his disciplinary punishment while incarcerated in Upstate Correctional Facility
was unconstitutionally obtained, as set forth more precisely in the Petition (Docket No. 1).
Plaintiff also requested permission to proceed in forma pauperis (Docket No. 2). This Court
determined that the action should have been brought under 42 U.S.C. § 1983, and not 28
U.S.C. § 2254, see Chambers v. U.S., 106 F.3d 472, 475 (2d Cir.1997) (pro se petitions
should be characterized according to the relief sought, and not the label given to them by
pro se prisoners unlearned in the law). Plaintiff was therefore directed to show cause why

the Petition should not be recharacterized as a civil action under 42 U.S.C. § 1983. (Docket
No. 3). Plaintiff filed a response, relying in part on the fact that he would be precluded from

proceeding in forma pauperis under 42 U.S.C. § 1983 and 28 U.S.C. § 1915(g), but not 28
U.S.C. § 2254 (Docket No. 4).
Plaintiffs current motion is plainly a request for a certificate of appealability and not a
motion for reconsideration. Plaintiff expressly requests such a certificate, and argues that
his claims were "debatable among jurists of reason" and not "squarely foreclosed by
statute, rule , or authoritative court decision." (Docket No. 6 p. 3). For the reasons set
forth in its decision (Docket No. 5), the Court finds that Plaintiff has not made a
substantial showing of the denial of a constitutional right, and therefore his request for a
certificate of appealability is denied . Plaintiff is granted an additional thirty (30) days
from the date of this order to pay the filing fee. If the filing fee is not paid, this action is
dismissed without further order of the Court.
SO ORDERED.

DATED:

RUJG A.J Lj

I

2016

Rochester, NY

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