1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RICHARD R. GATES, Case No. 3:16-cv-00401-MMD-CBC

7 Plaintiff, ORDER v. 8 D. POAG, et al., 9 Defendants. 10 11 Pro se Plaintiff Richard R. Gates, currently incarcerated and in the custody of the 12 Nevada Department of Corrections (“NDOC”), alleged violations of his Eighth Amendment 13 right to be free from cruel and unusual punishment under

against 14 correctional facility medical officials generally arising from his contention that he was not 15 permitted to refill his inhaler prescription sufficiently frequently. (ECF No. 5.) The Court 16 previously granted summary judgment to Defendants. (ECF Nos. 52 (order), 53 17 (judgment).) Before the Court is Plaintiff’s motion for a certificate of appealability. (ECF 18 No. 54.) 19 However, as Defendants point out (ECF No. 55 at 2), “Plaintiff does not need a 20 certificate of appealability.” Hulihan v. Reg’l Transp. Comm’n of S. Nevada, Case No. 2:09- 21 CV-01096-ECR,

, at *1 (D. Nev. Aug. 1, 2012). “The requirement for a 22 certificate of appealability only applies to claims for habeas corpus relief arising under 28

or § 2255.” Id. (citation omitted). Moreover, Plaintiff has already filed an 24 appeal (ECF No. 58), so the Court lacks jurisdiction to consider Plaintiff’s motion anyway. 25 See, e.g., Kern Oil & Ref. Co. v. Tenneco Oil Co.,

(9th Cir. 1988) (“filing 26 a notice of appeal usually divests the district court of jurisdiction over the matters 27 appealed.”). The Court will thus deny Plaintiff’s motion. 28 1 The Court notes that Plaintiff made several arguments and cited to several cases 2 not discussed above. The Court has reviewed these arguments and cases and determines 3 that they do not warrant discussion as they do not affect the outcome of the issues before 4 the Court. 5 It is therefore ordered that Plaintiff’s motion for a certificate of appealability (ECF 6 No. 54) is denied. 7 DATED THIS 24th day of April 2020.

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10 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28