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SANDOVAL v. McGRATH

United States District Court, N.D. California


October 4, 2005.

ALFRED A. SANDOVAL, Plaintiff,
v.
JOSEPH McGRATH, et al., Defendants.

The opinion of the court was delivered by: JEFFREY WHITE, District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE NOTICE OF APPEAL AND FOR CERTIFICATE OF APPEALABILITY
On May 2, 2005, the Court dismissed this case for Plaintiff's failure to state a claim under 42 U.S.C. § 1983. Plaintiff filed a motion to amend the complaint, which the Court denied on July 13, 2005. Plaintiff has filed requests for permission to file a notice of appeal and for a certificate of appealability (docket no. 9). Plaintiff's request for leave to file a notice of appeal is DENIED as unnecessary. Plaintiff's request is construed as a notice of appeal of the Court's order denying Plaintiff's motion to amend, as it meets the requirements for such notice under Rule 3(c)(1) of the Federal Rules of Appellate Procedure. Rule 3(c)(1) requires that the notice of appeal must: (1) specify the party or parties taking the appeal, (2) designate the judgment or order at issue, and (3) name the court to which the appeal is taken. Fed.R.App.P. 3(c)(1).

Plaintiff's request for a certificate of appealability is also DENIED as unnecessary. A certificate of appealability is only necessary or appropriate in a habeas corpus case, which this is not. See 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).

  The Clerk of Court shall forward this order, along with the case file, to the United States Court of Appeals for the Ninth Circuit.

  IT IS SO ORDERED.

20051004

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