(PC) Grzeslo v. Fisher ( 2023 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 10 JAMES GRZESLO, 1:21-cv-01371-JLT-EPG (PC) 11 Plaintiff, ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY AS 12 v. UNNECESSARY 13 (ECF No. 72) B. SUAZO, 14 Defendant. 15 16 Plaintiff James Grzelso is a state prisoner proceeding pro se and in forma pauperis in this 17 civil rights action pursuant to 42 U.S.C. § 1983. On August 21, 2023, the presiding District Judge 18 dismissed this case without prejudice for Plaintiff’s failure to comply with court orders and to 19 prosecute this case. (ECF No. 68). 20 On September 7, 2023, Plaintiff filed a notice of appeal. (ECF No. 70). Additionally, he 21 filed an application for a certificate of appealability (COA), which is now before the Court. (ECF 22 No. 72). The Court will deny the application as unnecessary because a COA is not needed for this 23 civil rights action filed under § 1983. Rather, a COA is required for habeas actions. Miller-El v. 24 Cockrell, 537 U.S. 322, 335-36, (2003) (“As mandated by federal statute, a state prisoner seeking 25 a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 26 petition. 28 U.S.C. § 2253. Before an appeal may be entertained, a prisoner who was denied 27 habeas relief in the district court must first seek and obtain a COA from a circuit justice or 28 judge.”); 28 U.S.C. § 2253(c)(1)(A) (noting that a COA is needed for habeas actions); Fed. R. 1 | App. P. 22(b)(1) (“In a habeas corpus proceeding in which the detention complained of arises 2 | from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot 3 || take an appeal unless a circuit justice or a circuit or district judge issues a certificate of 4 | appealability under 28 U.S.C. § 2253(c).”). 5 Accordingly, IT IS ORDERED that Plaintiffs application for a certificate of appealability 6 is denied as unnecessary. (ECF No. 72). IT IS SO ORDERED. 8 9 | Dated: _ September 8, 2023 [spe ey □□ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28