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285 F. App'x 537

Jackson v. Friel

U.S. Courts of Appeals

Decided July 11, 2008

U.S. Courts of Appeals · decided 2008-07-11

Applies 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996) · 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act))

Relies on Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · Andy Rael v. Joe Williams Warden Lea County Correctional Facility

Decided 2008-07-11

¶1 ORDER DENYING CERTIFICATE OF APPEALABILITY

PAUL KELLY, JR., Circuit Judge.

¶2 Lawrence Jackson, a state inmate appearing pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his motion for a temporary restraining order against the prison. This motion was filed while his habeas corpus petition under 28 U.S.C. § 2254 .is pending before the district court. * The district court denied the motion for a temporary restraining order, and this appeal followed.

¶3 In his motion seeking a COA, Mr. Jackson argues that a temporary restraining order is necessary to require the prison to adequately care for his medical needs. However, conditions-of-confinement claims by a state inmate generally must be brought in a civil rights complaint under 42 U.S.C. § 1983 rather than in a habeas petition. See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir.2000). The district court’s resolution of this motion is not reasonably debatable among jurists given the procedural vehicle. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

¶4 We DENY a COA, DENY all pending motions, and DISMISS the appeal.

*

¶5 A review of the district court docket sheet reveals that though at issue in September 2005, the habeas petition remains pending. In September 2007, the magistrate judge issued an order to show cause why the matter should not be dismissed for failure to prosecute. Both Mr. Jackson and the State objected on the grounds that the petition was ready for a ruling.

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