IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 15, 2010
RODNEY JEROME WOMACK, PLAINTIFF,
C. BAKEWELL, ET AL., DEFENDANTS.
Plaintiff is a prisoner proceeding pro se with an action under 42 U.S.C. § 1983. On December 28, 2009, plaintiff filed a request for reconsideration of the magistrate judge's order filed December 17, 2009, denying plaintiff's request for medication, construed as a motion for temporary restraining order. Plaintiff has also filed a motion for a certificate of appealability.
Plaintiff consented to the jurisdiction of the magistrate judge assigned to this case. See Docket No. 6. Therefore the magistrate judge had authority to rule on the request for a change in plaintiff's medication, which the magistrate judge construed as a motion for a temporary restraining order. The instant motion for reconsideration is construed under Federal Rule of Civil Procedure 60(b), which lists several grounds for relieving a party from an order of the court. Having reviewed the motion, the court finds no reason to vacate or amend its previous order denying plaintiff's request for pain medication in addition to the treatment he concedes he is already receiving. See Order at 3 (Docket No. 19) (noting there is no dispute that plaintiff is receiving daily doses of methadone, among other medications, for plaintiff's chronic ankle pain).
The motion for a certificate of appealability is misplaced. Plaintiff cites Federal Rule of Appellate Procedure 22(b), which only applies to habeas corpus proceedings. Plaintiff proceeds under the Civil Rights Act, not any of the federal habeas statutes. Therefore no certificate of appealability should issue in this case.*fn1
Accordingly, IT IS HEREBY ORDERED that:
1. The motion for certificate of appealability (Docket No. 21) is denied; and
2. The motion for reconsideration (Docket No. 24) is denied.