UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 1, 2011
THEODORE BRITTON YATES,
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISREGARDING MOTION FOR CERTIFICATE OF APPEALABILITY (ECF No. 80)
ORDER FOR THE CLERK TO SERVE A COPY OF THIS ORDER ON THE NINTH CIRCUIT
Plaintiff Theodore Britton Yates ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 27, 2011, this action was dismissed for Plaintiff's failure to exhaust administrative remedies. (ECF No. 73.) Plaintiff filed a notice of appeal on June 15, 2011, and a motion for a certificate of appealability on June 28, 2011. (ECF Nos. 77, 80.)
Rule 22 of the Federal Rules of Appellate Procedure requires that an applicant who files a notice of appeal in a habeas proceeding must obtain a certificate of appealability under 28 U.S.C. § 2253(c), or a statement why a certificate should not issue, from the district judge who rendered judgment in the action. Fed. R. App. P. 22(b). The district clerk must send the certificate or statement to the court of appeals along with the notice of appeal. Id. Plaintiff has requested a certificate of appealability for the notice of appeal he filed in this action on June 15, 2011. However, Plaintiff's appeal concerns a civil rights action under § 1983, not a habeas proceeding. Therefore, Rule 22 does not apply to Plaintiff's appeal, and Plaintiff's application for a certificate of appealability shall be disregarded. Plaintiff is advised that his appeal was processed and forwarded to the Ninth Circuit on June 15, 2011. (ECF No. 78.)
Accordingly, THE COURT HEREBY ORDERS that:
1. Plaintiff's motion for a certificate of appealability is DISREGARDED; and
2. The Clerk is DIRECTED to serve a copy of this order on the Ninth Circuit.
IT IS SO ORDERED.
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