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Tony Cobos v. S. Suryadevara

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 30, 2013

TONY COBOS,
PLAINTIFF,
v.
S. SURYADEVARA, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISREGARDING MOTION FOR CERTIFICATE OF APPEALABILITY (Doc. 48.)

Tony Cobos (Aplaintiff@) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. ' 1983. On March 27, 2013, the Court granted Defendants' motion for summary judgment, and judgment was entered in favor of Defendants. (Docs. 46, 47.) On April 29, 2013, plaintiff filed a motion for a certificate of appealability. (Doc. 48.)

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) (emphasis added). Plaintiff requests a certificate of appealability for the Ninth Circuit Court of Appeals. However, because plaintiff=s appeal concerns a civil rights action under ' 1983 and not a habeas proceeding, Rule 22 is not applicable. Therefore, Plaintiff=s motion for a certificate of appealability shall be disregarded.

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s motion for a certificate of appealability, filed on April 29, 2013, is DISREGARDED.

IT IS SO ORDERED.

20130430

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