Payton (ID 66352) v. Kelly

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS WALTER PAYTON, Plaintiff, v. CASE NO. 20-3257-SAC LAURA KELLY, et al., Defendants. ORDER Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983 . Plaintiff is incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). On April 21, 2021, the Court dismissed this case for failure to state a claim. (Docs. 11, 12.) On May 4, 2021, the Court denied Plaintiff’s motion for reconsideration. (Doc. 14). This matter is before the Court on Plaintiff’s “Petition for Certificate of Appealability” (Doc. 15.) Because a certificate of appealability is not necessary in a civil rights action, the Court denies the request as moot. See Smith v. Cowman, 208 F. App’x 687 , (10th Cir. 2006) (unpublished) (“Because this is a § 1983 action, not a habeas action, the district court properly ruled that the application for a certificate of appealability was moot.”); Lawson v. Engleman, 67 F. App’x 524 , 527 n.4 (10th Cir. 2003) (unpublished) (“Because a certificate of appealability is not necessary for a prisoner civil rights appeal, we do not consider Lawson’s motion for a certificate of appealability”); Hicks v. Woodruff, 216 F.3d 1087 (Table), 2000 WL 854269 , at *4 (10th Cir. June 28, 2000) (unpublished) (denying request for appealability as moot and stating that “[a]n appeal from a district court decision in a 42 U.S.C. § 1983 civil rights case does not require a certificate of appealability”). Plaintiff may also be seeking to proceed in forma pauperis on appeal. This Court’s April 21, 2021 Memorandum and Order found that “[t]his Court’s dismissal constitutes Plaintiff’s third strike.” (Doc. 11, at 6.) As a three-strikes litigant, Plaintiff is not entitled to appeal without prepaying the appellate filing fee unless he shows imminent danger of serious physical injury. Section 1915(g) prohibits a three-strikes prisoner from bringing a civil action or appeal “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915 (g). Because Plaintiff has not shown that he meets the only exception set forth in § 1915(g), the Court denies leave to appeal in forma pauperis. Plaintiff is also cautioned that if he intends to appeal, he has not yet filed a notice of appeal in this case. IT IS THEREFORE ORDERED THAT Plaintiff’s Petition for Certificate of Appealability (Doc. 15) is denied. IT IS SO ORDERED. Dated May 6, 2021, in Topeka, Kansas. s/ Sam A. Crow Sam A. Crow U.S. Senior District Judge