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Tran v. Metha

United States District Court, Ninth Circuit

June 13, 2013

CUONG TRAN, Plaintiff,
v.
DEEPAK METHA, M.D., AND JACK McANINCH, M.D., Defendants.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Judgment was entered in this civil rights action on March 28, 2013, dismissing the action with prejudice, against the sole remaining defendant (McAninch), due to plaintiff's protracted failure to participate in this case. (See ECF Nos. 35, 38.) Two months later, on May 24, 2013, plaintiff filed a notice of appeal, and a "Notice of Motion for a Certificate of Probable Cause in Appeal for Habeas Corpus..., " pursuant to United States Code, tit. 28, section 2253. (ECF Nos. 45, 47.) The appeal to the Ninth Circuit Court of Appeals was processed on June 11, 2013 (ECF No. 46); the merits of the appeal remain pending in that court. Remaining in the district court is plaintiff's motion for the requested certificate. (ECF No. 47.)

Plaintiff improperly relies on the procedure for requesting a certificate of appealability in a habeas corpus action. An appeal may be taken from a final district court judgment in a habeas corpus action only if a certificate of appealability has issued, and finds that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. ยง 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing, or state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

There is no comparable procedure or requirement in appealing a final district court judgment in a prisoner civil rights action. Plaintiff's reliance on Section 2253 is misplaced. Plaintiff's appeal may proceed without any further order of this court.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's "motion" filed May 24, 2013 (Dkt. No. 47), is denied; and

2. This case shall remain closed; the court will consider no further filings in this action unless so directed by the Court of Appeals.

SO ORDERED.


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