Zochlinski v. Blum et al

Filing 35

ORDER signed by Magistrate Judge John F. Moulds on 3/30/12 ORDERING that the 4/5/12 hearing in this matter is VACATED; and plaintiff's 19 motion to disqualify, motion for sanctions, request for reporter's presence and request for oral argument are DENIED. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALAN ZOCHLINSKI,
Plaintiff,

ORDER

vs.

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No. CIV 11-cv-3295-KJM-JFM (PS)

Defendants.

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BLUM, et al.,

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Pending before the court is plaintiff’s motion to disqualify the undersigned

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pursuant to 28 U.S.C. § 455(a)(b)(1), motion for sanctions, request for reporter’s presence and

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request for oral argument. The court has determined that the matter shall be submitted upon the

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record and briefs on file and accordingly, the date for hearing of this matter shall be vacated.

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Local Rule 230.

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A.

Motion to Disqualify
Plaintiff seeks recusal of the undersigned on the ground that Plaintiff’s motion is

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based on this court’s November 14, 2011 recommendation that plaintiff’s complaint be

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dismissed with prejudice. Plaintiff contends that “[a] judge that makes prejudice judgments

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should not be allowed to make rulings in a case.” Doc. No. 6 at 1.

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Section 455 provides in relevant part:

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(a) Any . . . judge . . . shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.

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(b) He shall also disqualify himself in the following circumstances:
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(1) Where he has a personal bias or prejudice concerning a party . . . .
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28 U.S.C. § 455(a), (b)(1).
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The standard for recusal under 28 U.S.C. § 455 is “whether a reasonable person
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with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be
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questioned.” Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (quoting United States v.
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Nelson, 718 F.2d 315, 321 (9th Cir. 1983) ); Ronwin v. State Bar of Arizona, 686 F.2d 692,
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700-01 (9th Cir. 1981), rev’d on other grounds sub nom. Hoover v. Ronwin, 466 U.S. 558
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(1984). The alleged prejudice must result from an extrajudicial source; a judge’s prior adverse
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ruling is not sufficient cause for recusal. Mayes, 729 F.2d at 607.
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Examination of the motion to disqualify demonstrates that the plaintiff’s
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allegation arises solely from the undersigned’s judicial determinations. This cannot be the basis
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for recusal under 28 U.S.C. § 455. See Mayes, 729 F.2d at 607; Toth, 862 F.2d at 1388.
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Therefore, plaintiff’s motion for disqualification will be denied.
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B.

Motion for Sanctions

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Plaintiff also moves for sanctions on the ground that counsel for defendants
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misled the court as to the nature of this case. Plaintiff argues that despite the Notice of Related
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Case filed by defendants, this case is in fact unrelated to 2:10-cv-1824-KJM-JFM, to which this
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case was eventually related. Examination of the motion convinces the court that sanctions are
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not warranted here. This request will be denied.
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C.

Request for Reporter’s Presence

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Next, plaintiff requests that a court reporter attend any and all hearings in this
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matter to ensure that a transcript is produced. Plaintiff is informed that all hearings are recorded
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by audio device and, should a transcript become necessary, either party may request one at their

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own expense. Accordingly, this request will be denied.

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D.

Request for Oral Argument

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Finally, plaintiff requests oral argument otherwise he contends he will be

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prejudiced in light of his “poor to mediocre” writing skills. Whether to hear oral argument is

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discretionary with the court; that is, according to Local Rule and the Federal Rules of Civil

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Procedure, plaintiff has no statutory right to oral argument. See Local Rule 230(g); Fed. R. Civ.

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P. 78(b). Furthermore, it is well-established that parties do not have a constitutional right to oral

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argument. Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998) (per curiam) (citing

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cases). Here, the court notes that plaintiff has been proceeding against the Regents of the

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University of California and various officials for the better part of nineteen years. The court has

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examined the filings in this action. At its discretion, the court finds that oral argument would not

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aid in the determination of the filed matters. Accordingly, this request will be denied.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The April 5, 2012 hearing in this matter is vacated; and

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2. Plaintiff’s February 24, 2012 motion to disqualify, motion for sanctions,

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request for reporter’s presence and request for oral argument are denied.

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DATED: March 30, 2012.

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