Zolnierz v. Arpaio et al

Filing 206

ORDER denying 97 Motion for Leave to Appeal; denying 97 Motion to Stay; denying 97 Motion for Sanctions; denying as moot 104 Motion for Preliminary Injunction; denying as moot 104 Motion for TRO; denying as moot 104 Motion for Sanc tions; denying 105 Motion to Vacate ; denying as moot 111 Motion to Strike ; denying 114 Motion for Leave to Appeal; denying as moot 133 Motion to provide plaintiff with various documents; denying as moot 138 Motion for Protective Ord er; denying 166 Motion for Recusal ; denying 166 Motion to Reassign Case ; denying 179 Motion for Sanctions; denying 180 Motion for Certification; denying 183 Motion to waive Transcript Order Fees ; denying 188 Motion for Reconsideration ; denying 189 Motion for Extension of Time Deadline ; denying 190 Motion to Remand to State Court. Signed by Judge G Murray Snow on 12/4/12.(DMT)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Douglas John Zolnierz,
Plaintiff,

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ORDER

v.

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No. CV-11-00146-PHX-GMS

Joseph M. Arpaio, et al.
Defendants.

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Pending before the Court are a number of motions in this case. A review of the

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docket reveals that several of these can be disposed of in short order.

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I.

APPEAL ISSUES

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Portions of this case are currently on appeal in the Ninth Circuit. On August 8,

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2012, Plaintiff Douglas Zolnierz filed a Motion for Leave to Appeal, Motion to Stay, and

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a Motion for Sanctions. (Doc. 97.) The Court has reviewed the motion and subsequent

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Motions for Leave to Appeal and Certification to Take an Interlocutory Appeal (Docs.

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114, 180) and finds that none of the matters cited therein are appealable final judgments.

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Typically, the appropriate time for appeal is when the district court enters an order that

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“ends the litigation on the merits and leaves nothing for the court to do but execute the

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judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). Narrow exceptions exist

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that allow for an interlocutory appeal, but a review of the orders that Zolnierz seeks to

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appeal demonstrates that they are not of that nature.

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for Sanctions likewise does not have merit. Consequently, those motions are denied.

Zolnierz’s accompanying Motion

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Despite the lack of a ruling on the motions from this Court, Zolnierz filed a Notice

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of Interlocutory Appeal on September 4, 2012. (Doc. 115.) That moment was significant

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because—whether leave was granted or not—“[o]nce a notice of appeal is filed, the

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district court is divested of jurisdiction over the matters being appealed.” Natural Res.

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Def. Council v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (citing Griggs v.

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Provident Consumer Discount Co., 459 U.S. 56, 58, (1982) (per curiam)). The notice

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indicated that Zolnierz was appealing the following orders: the Order denying Zolnierz’s

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Motion to Appoint Counsel and Guardian ad Litem (Doc. 43); the Order dismissing

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Zolnierz’s claims against certain Defendants under Rule 8 (Doc. 5); the Order dismissing

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Zolnierz’s First Amended Complaint against multiple defendants (Docs. 7, 10); the Order

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denying Zolnierz’s Motion to Amend his Complaint (Doc. 12); the Order denying

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Zolnierz’s Motion to Enlarge Time to Effect Service of Process (Doc. 15); the Court’s

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Case Management Order (Doc. 31); the Order for Zolnierz to respond to Defendants’

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Motions (Doc. 44); the Order for Zolnierz to submit documents in his responses (Doc.

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53); the Order granting Defendants Eggert and Everett’s Motion for Summary Judgment,

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Defendant Arpaio’s Motion to Dismiss, and Defendant Venkatabalaji’s Motion for

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Summary Judgment (Doc. 58); the Order denying Zolnierz’s Motion to Compel (Doc.

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68); and the Court’s discovery Order of August 1, 2012 (Doc. 95). This Court is therefore

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“divest[ed] . . . of its control over th[ese] aspects of the case involved in the appeal.”

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Griggs, 459 U.S. at 58. Because this Court lacks jurisdiction over those matters being

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appealed, Zolnierz’s Motion to Vacate (Doc. 105), Motion for Reconsideration (Doc.

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188), and Motion for Extension of Time for Reconsideration (Doc. 189) of several of

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those orders are denied for want of jurisdiction.

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Zolnierz has also filed a motion to provide him with a copy of the docket sheet,

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recorded telephonic hearings, minute entries, and the entire court record. (Doc. 133.) He

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states in his motion that its purpose is to allow him to perfect his appeal and transmit the

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record to the Ninth Circuit. (Id. at 1.) As indicated by the docket, the Clerk’s office

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provided Zolnierz with a docket sheet on September 12, 2012. Likewise, the record was
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certified to the Ninth Circuit on September 5. (Doc. 116.) Relevant portions of the record

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were sent to Zolnierz on September 17, 2012. (Doc. 138.) Zolnierz’s motion is

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consequently moot.

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Next, Zolnierz filed a Motion to Waive Transcript Order Fees. (Doc. 183.) He

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states that the purpose of this Motion is likewise to enable him to perfect an appeal. As

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discussed, it appears that all necessary information was transmitted to the Ninth Circuit.

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In addition, the fact that Zolnierz was granted in forma pauperis status does not entitle

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him to a waiver of transcript fees. For the reasons discussed above, Zolnierz has no basis

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to appeal the orders he described in his notice of appeal. Therefore, there is no basis to

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grant a separate waiver of the transcript fees. That motion is denied.

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II.

DISCOVERY ISSUES

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This Court held a series of hearings in mid-September 2012 to resolve issues that

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arose in the course of discovery. It issued a number of rulings at that hearing that

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disposed of motions filed by all parties to this litigation. Zolnierz’s Motions for

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Preliminary Injunction, Temporary Restraining Order, and Sanctions (Doc. 104) and

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Motion to Strike (Doc. 111) concerned the discovery issues addressed in the September

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hearings and were mooted by the Court’s resolution of the discovery issues raised at

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those hearings. The same is true for Defendant Dr. Sudha D. Roa’s Motion for a

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Protective Order. (Doc. 138.) Consequently, those motions are denied as moot. Likewise,

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Zolnierz filed a Motion for Sanctions (Doc. 179) that contains the same objections to the

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course of discovery that he raised and were considered by the Court at those hearings. As

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the Court noted during those hearings, Zolnierz has presented no evidence that Roa or his

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counsel have done anything sanctionable. None of the papers attached to his motion

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reveal questionable conduct on the part of Defendants. Moreover, the motion essentially

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functions as a request for production, but was filed on October 11, 2012, almost three

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weeks after discovery had ended. Those requests repeated the same issues already

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addressed by the Court. Accordingly, the Motion for Sanctions is denied.

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III.

OTHER MOTIONS

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Zolnierz filed a Motion to Remand to State Court on October 19, 2012. (Doc.

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190.) This case, however, was never removed from state court to federal court. Zolnierz

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filed his Complaint in federal court on January 21, 2011. (Doc. 1.) This Court cannot

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send a case back to state court that never originated there. The Motion to Remand is

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therefore denied.

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Zolnierz has also filed a Motion for Recusal and Reassignment. (Doc. 166.) As

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this Court stated multiple times, it will not recuse itself or transfer the case. Zolnierz has

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not presented any evidence that would justify such a decision. The motion is denied.
CONCLUSION

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The remaining motions in this case relate in one way or another to the substantive

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motions filed by Defendant Raos and Zolnierz’s attempts to produce evidence sufficient

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to defeat those motions. The Court is reviewing those motions and an order will be issued

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in due course.

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IT IS THEREFORE ORDERED THAT:

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1.

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97) is denied.

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2.

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Zolnierz’s Motion for Leave to Appeal, to Stay, and for Sanctions (Doc.

Zolnierz’s Motion for Preliminary Injunction, Temporary Restraining

Order, and Sanctions (Doc. 104) is denied as moot.

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3.

Zolnierz’s Motion to Vacate (Doc. 105) is denied.

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4.

Zolnierz’s Motion to Strike (Doc. 111) is denied as moot.

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5.

Zolnierz’s Motion for Leave to Appeal (Doc. 114) is denied.

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6.

Zolnierz’s Motion to provide Plaintiff with various documents (Doc. 133)

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is denied as moot.

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7.

Roa’s Motion for Protective Order (Doc. 138) is denied as moot.

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8.

Zolnierz’s Motion for Recusal (Doc. 166) is denied.

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9.

Zolnierz’s Motion for Sanctions (Doc. 179) is denied.

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10.

Zolnierz’s Motion for Certification (Doc. 180) is denied.
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11.

Zolnierz’s Motion to Waive Transcript Order Fees (Doc. 183) is denied.

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Zolnierz’s Motion for Reconsideration (Doc. 188) is denied.

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Zolnierz’s Motion for Extension of Time (Doc. 189) is denied.

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Zolnierz’s Motion to Remand to State Court (Doc. 190) is denied.

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Dated this 4th day of December, 2012.

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