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Morris Mester, Cdcr #C-77174 v. Paramo

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 28, 2013

MORRIS MESTER, CDCR #C-77174,
PLAINTIFF,
v.
PARAMO, WARDEN; KELSO, RECEIVER;
DR. SEELEY, CEO;
DR. WALKER, CME; DR. CASIAN, M.D.; DR. NEWTON, M.D.; DR. CHOKATOS; M.D.;
LACURON, R.N.; BROWN, SERGEANT;
HURM, CORRECTIONAL OFFICER;
DR. GHAUSI, M.D.; DR. GLAZENER, M.D., DEFENDANTS.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING AS MOOT REQUEST FOR CERTIFICATE OF APPEALABILITY

On January 8, 2013, Morris Mester ("Plaintiff"), a state inmate proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis ("IFP"). (Doc. No. 1.) On January 18, 2013, the Court granted Plaintiff's motion to proceed IFP but sua sponte dismissed his complaint, with leave to amend, for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). (Doc. No. 6 at 9-10.) Plaintiff subsequently filed a motion for reconsideration, a motion to appoint counsel, and a motion to relate back. (Doc. Nos. 12, 15, 17.) On March 8, 2013, the Court denied these motions but granted Plaintiff an additional 60 days leave to file an amended complaint. (Doc. No. 18.) Rather than file an amended complaint, Plaintiff now appeals the Court's Orders and, on March 25, 2013, Plaintiff filed a request for a certificate of appealability pursuant to 28 U.S.C. § 2253. (Doc. No. 20.)

Plaintiff does not need a certificate of appealability to pursue his appeal. The requirement for a certificate of appealability only applies to claims for habeas corpus relief arising under 28 U.S.C. § 2254 or § 2255. See Fed. R. App. P. 22(b); see also Lino v. Small, No. 09-CV-1834, 2012 WL 5506072, at *1 (S.D. Cal. Nov. 13, 2012); Dalluge v. U.S. Dep't of Justice, No. C11-5037, 2011 WL 1675407, at *1 (W.D. Wash. May 4, 2011) ("As this case was brought pursuant to 42 U.S.C. § 1983, there is no requirement for a certificate of appealability."); Jenkins v. Caplan, No. C 02-5603, 2010 WL 3057410, at *1 (N.D. Cal. Aug. 2, 2010) ("[A] Certificate of Appealability is inapplicable to a § 1983 action.").

Accordingly, the Court denies as moot Plaintiff's request for a certificate of appealability.

IT IS SO ORDERED.

20130328

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