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Perry v. Aguirre

June 4, 2009

ROBERT DANIEL PERRY, PLAINTIFF,
v.
M AGUIRRE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING REQUEST FOR ISSUANCE OF CERTIFICATE OF APPEALABILITY AS INAPPLICABLE IN THIS ACTION (Doc. 124.)

Plaintiff Robert Daniel Perry("Plaintiff") is a state prisoner who was proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On November 17, 2008, the Court filed an order dismissing this action for Plaintiff's failure to prosecute. (Doc. 112.) On January 28, 2009, Plaintiff filed a Notice of Appeal.*fn1 (Doc. 120.) On February 24, 2009, Plaintiff filed a motion to obtain a certificate of appealability. (Doc. 124.)

Because the instant action is a civil rights action rather than a habeas petition, Plaintiff's motion for a certificate of appealability is misplaced. A certificate of appealability is not needed in order to appeal the Court's order of November 17, 2008, and the request for a certificate of appealability is HEREBY DENIED on that ground.

IT IS SO ...


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