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Thomas D. Braley v. Wasco State Prison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 26, 2011

THOMAS D. BRALEY,
PLAINTIFF,
v.
WASCO STATE PRISON, ET AL.,
DEFENDANTS.

APPEAL NO. 11-16728

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

(ECF No. 54) ORDER DISREGARDING MOTION FOR CERTIFICATE OF AVAILABILITY ORDER FOR CLERK TO SERVE COPY OF THIS ORDER ON NINTH CIRCUIT

Plaintiff Thomas D. Braley ("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 June 15, 2011, Plaintiff's motion for a temporary restraining order was denied. (ECF No. 53.) On July 18, 2011, Plaintiff filed a notice of appeal to the Court of Appeals for the Ninth Circuit, along with a motion for issuance of a certificate of appealability. (ECF Nos. 119, 120.)

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 April 4, 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 July 19, 2011. (ECF No. 56.)

Accordingly, THE COURT HEREBY ORDERS that:

1. Plaintiff's Motion for Issuance of 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.

20110726

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