Opinion
Case No. 8:02-cv-1080-T-24MSS.
August 14, 2006
ORDER
This cause comes before the Court for consideration of Plaintiff's motion titled Motion/Request for Certificate of Appealability (Doc. No. 194). Specifically, pursuant to Federal Rule of Civil Procedure 2253, Plaintiff seeks a certificate of appealability such that he may appeal this Court's July 7, 2006 Order denying his motion to vacate (Doc. No. 192).
On December 2, 2002, Plaintiff filed an amended complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983, claiming that Defendant Charles Street ("Street") used excessive force during a foot chase (Doc. No. 7). A four day jury trial was held in this case January 4-8, 2004. On January 9, 2004, judgments were entered in favor of Defendants Everett S. Rice and Street (Doc. Nos. 117 and 118). On January 20, 2004, Plaintiff filed a motion for new trial as to Defendant Street (Doc. No. 120). On January 30, 2004, after a hearing on Plaintiff's motion, this Court entered an Order denying Plaintiff's motion for new trial against Defendant Street (Doc. No. 134).
On April 12, 2004, Plaintiff filed a notice of appeal to the United States Court of Appeals for the Eleventh Circuit "from the Final Judgment in favor of Deputy Charles Street" and "the Order denying a new trial"(Doc. No. 146). On July 19, 2004, the Eleventh Circuit remanded the case to this Court for a determination as to the date that Plaintiff delivered his notice of appeal to prison officials for forwarding to the district court (Doc. No. 160). On September 1, 2004 this Court conducted a hearing and on September 2, 2004 entered an Order finding Plaintiff timely filed his notice of appeal (Doc. No. 173). On June 29, 2005, the Eleventh Circuit affirmed this Court noting Plaintiff's failure to provide it with a complete trial transcript (Doc. No. 181). On July 7, 2006, this Court denied Plaintiff's motion to vacate judgment based upon alleged fraud on the Court (Doc. No. 192). On August 1, 2006, Plaintiff filed a notice of appeal as to the Court's order denying Plaintiff's motion to vacate (Doc. No. 193).
A certificate of appealability is not applicable in a civil rights case such as this. This action is not a habeas corpus proceeding. Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's motion for certificate of appealability (Doc. No. 194) is DENIED.
DONE AND ORDERED.