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Zochlinski v. Blum

United States District Court, E.D. California

April 2, 2014

HOWARD ALAN ZOCHLINSKI, Plaintiff,
v.
RICHARD C. BLUM, et al., Defendants.

ORDER AND FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is proceeding in pro per in this action. Currently before the court is plaintiff's reply to the court's November 19, 2013 order to show cause why this action should not be dismissed on mootness grounds; and defendants' response thereto. See ECF No. 48. After considering the supporting documentation submitted by the parties, and for the reasons discussed below, the court recommends that plaintiff's claims based on a property interest in a Ph.D. be dismissed as moot, and plaintiff be granted leave to amend his complaint as to the remaining claims.

I. Background

This action arises out of plaintiff's pursuit of a Ph.D. at the University of California, Davis ("U.C. Davis"). On December 12, 2011, this action was removed by defendants from Yolo County Superior Court. ECF No. 2.

Plaintiff's complaint is "based on the refusal of the Student Petitions Committee of the Academic Senate of the University of California, Davis, to award [plaintiff] his Ph.D. based on the three-paper rule."[1] Complaint, ECF No. 2-1, at 6. Therein, plaintiff sets forth eight claims against defendants as follows: (1) violation of common law on contracts and particular civil rights protections regarding minority individuals and their rights under contract; (2) violation of plaintiff's due process rights and rights of equal protection; liberty; association; employment; education and property; (3) violations of the Americans with Disabilities Act and related California state statutes regarding the disabled; (4) violations of due process rights and rights of equal protection; liberty; employment; associational rights under 42 U.S.C. § 1983 and California statutes designed to protect citizens of the state from the same intrusions; (5) conspiracy to deprive plaintiff of his federally-protected and state guaranteed rights and to commit contract fraud; (6) failure to prevent conspiracy to deprive federally-protected and state guaranteed rights and contract fraud; (7) failure to enforce the standing orders, bylaws, rules and regulations of the Regents of the University of California; and (8) First Amendment violations. Id. at 16-24.

Plaintiff's claims turn on his allegation that he was improperly denied his Ph.D. based on the Three Paper Rule. For example, with regard to plaintiff's equal protection claim, plaintiff alleges that "he is a member of a protected class under the contract sections of [42 U.S.C. § 1981]; and is entitled to protection and compensation under this law." Id. at 17. Similarly, plaintiff alleges that "[b]y awarding other students in similar situations as [plaintiff] a [Three Paper Rule] but denying [plaintiff] a Ph.D. under the same rules, they have denied him equal protection under the law." Id. at 18. Plaintiff also alleges that he "has been deprived of a valuable property without just cause, for reasons of racial animus, retaliation, bias and to undermine his First Amendment Rights." Id. at 18. With regard to his claim pursuant to the Americans with Disabilities Act, plaintiff alleges that defendants "refused to recognize that [plaintiff's] disabilities interfered with his work" and "[d]efendants could have awarded his Ph.D. to him based" upon this recognition." Id. at 21. Finally, plaintiff alleges that "[d]efendants conspired among themselves... to prevent [plaintiff] from acquiring the Ph.D. he has earned in the field of Genetics" in violation of his contract rights under 42 U.S.C. § 1985. Id. at 23.

On January 11, 2012, defendants filed a motion to dismiss plaintiff's complaint. ECF No. 10. Therein, defendants argued the following: (1) the action is barred by the statute of limitations; (2) plaintiff fails to state a claim upon which relief could be granted; or (3) the action should be stayed pending the outcome of plaintiff's appeal of the state court's denial of his mandamus petition involving the refusal of the U.C. Davis Student Committee to award plaintiff his Ph.D. Id.

On August 24, 2012, the court granted defendants' motion to dismiss with leave to amend and stayed this action. ECF No. 42 (noting that "[t]he gravamen of plaintiff's claim is that he is entitled to a Ph.D. under the Three Paper Rule"). In determining that this action should be stayed, the court noted the following:

Pullman[2] abstention is appropriate where:
(1) The complaint touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.
(2) Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.
(3) The possibly determinative issue of state law is doubtful.
Sinclair Oil Corp. v. County of Santa Barbara , 96 F.3d 401, 409 (9th Cir. 2006). Here, plaintiff has filed a writ of mandate in the state court concerning conferral of a Ph.D. degree pursuant to the Three Paper Rule. As the court notes in Case No. 08-cv-0024-LEW-CKD, whether plaintiff has a vested property interest in conferment of a Ph.D. is an unclear matter of state law. Absent that right, plaintiff may not maintain this action. Accordingly, abstention under Pullman is appropriate.

Id. at 5-6. Defendants were ordered to advise the court of the resolution of the state mandamus proceedings. On July 17, 2013, defendants filed a notice of final resolution of the state mandamus proceedings, and included copies of the relevant state court decisions. ECF No. 44. In light of the Superior Court's judgment in favor of the Regents of the University of California in the state mandamus action, it appeared to the court that plaintiff's claims in this action were moot. See ECF No. 46-1 at 6. As a result, plaintiff was ordered to show cause why this action should not be dismissed.

Following three extensions of time, plaintiff filed a response to the order to show cause on February 26, 2014. ECF No. 59. Defendants replied thereto on March 11, 2014. ECF No. 60. On March 18, 2014, plaintiff filed a motion to excuse his late filing and a response to defendants' reply. ECF No. 61. On March 21, 2014, defendants filed an objection to plaintiff's response to defendants' reply, requesting the court to strike plaintiff's response. ECF No. 62.

For the reasons set forth below, the court recommends that plaintiff's claims based on a property interest in a Ph.D. be dismissed as moot, and plaintiff be granted leave to amend his complaint, if possible, as to the remaining claims.

II. Plaintiff's Motion to Excuse Late Filing

As a threshold matter, the court addresses plaintiff's March 18, 2014 "motion to excuse late filing... and response to defendants' reply to plaintiff's response to the court's order to show cause;" and ...


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