Opinion
Case No. 04-70164
09-23-2011
WILLIAM I. GILL, Plaintiff, v. PONTIAC POLICE OFFICERS LOCRICCHIO (#304) and MAIN (#310), Defendants.
Untied States District Judge Paul D. Borman
ORDER DENYING PLAINTIFF'S MOTION FOR A CERTIFICATE OF APPEALABILITY
This matter is before the Court on Plaintiff's Motion for a Certificate of Appealability. (Dkt. No. 103.) Defendants have filed a response. (Dkt. No. 104.) For the reasons that follow, the Court DENIES Plaintiff's motion for a certificate of appealability.
In an Order dated July 9, 2008, this Court removed this action as a pending matter and dismissed the case without prejudice. (Dkt. No. 86.) In an Order dated August 29, 2011, this Court granted Defendants' motion to amend the Court's prior order of dismissal to be "with prejudice" due to the expiration of the statute of limitations on all of Plaintiff s claims against these Defendants. (Dkt. No. 101.) On September 15, 2011, Plaintiff filed the instant Motion for Certificate of Appealability. (Dkt. No. 103.) Because Plaintiff brought his claims under 42 U.S.C. § 1983, and not for habeas relief under 28 U.S.C. § 2254, Plaintiff does not require a certificate of appealability from this Court to pursue any rights of appeal he may have under the Federal Rules of Appellate Procedure. See 28 U.S.C. § 2253(c)(1); Johnson v. CCA-Northeast Ohio Correctional Center Warden, 21 F. App'x. 330, 332 (6th Cir. 2001) ("Since this case is properly construed as brought under § 1983, and not under § 2254, Johnson does not require a certificate of appealability.") (citing 28 U.S.C. § 2253(c)(1) and Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); Brown v. Matuzak, No. 07-11312, 2009 WL 3390174, at *1 (E.D. Mich. Oct. 21. 2009) ("Because Plaintiff is appealing a dismissal of an action brought pursuant to § 1983, it is not necessary for him to obtain a Certificate of Appealability.") (citing Johnson, 21 F. App'x at 332).
Accordingly, the Court DENIES Plaintiff s motion for a certificate of appealability (Dkt. No. 103).
IT IS SO ORDERED.
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE