O. Paul Schlenvogt v. Scott Marshall;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
JS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
O. PAUL SCHLENVOGT,
Plaintiff - Appellant,
v.
SCOTT MARSHALL; et al.,
Defendants - Appellees.
No. 08-17196
D.C. No. 2:06-cv-01613-MCE-
GGH
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
O. Paul Schlenvogt appeals pro se from the district court’s judgment
dismissing his action brought under 42 U.S.C. § 1983 and the Racketeer Influenced
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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and Corrupt Organizations Act. He also appeals from the order denying his motion
to disqualify the district and magistrate judges. To the extent we have jurisdiction,
it is under 28 U.S.C. § 1291. We affirm in part and dismiss in part.
The district court did not abuse its discretion by denying Schlenvogt’s
motion for disqualification because the motion was based on adverse rulings and
unsupported assertions. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(“judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion”); Pesnell v. Arsenault, 543 F.3d 1038, 1043-44 (9th Cir. 2008)
(concluding that the district court did not abuse its discretion by denying a motion
for disqualification where there was no showing that the judge was likely to be a
material witness).
We lack jurisdiction to review the underlying judgment because
Schlenvogt’s notice of appeal was filed more than thirty days after entry of
judgment. See Fed. R. App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 209
(2007) (stating that a timely notice of appeal is mandatory and jurisdictional). The
postjudgment motions did not toll the time to appeal from the judgment. See Fed.
R. App. P. 4(a)(4)(A) (listing tolling motions); Munden v. Ultra-Alaska Assocs.,
849 F.2d 383, 386 (9th Cir. 1988) (explaining that we will not “strain to
characterize artificially” a postjudgment motion “merely to keep the appeal alive”).

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Appellees’ request for judicial notice is denied. See Santa Monica Food Not
Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (declining
to take judicial notice of documents that were not relevant to resolution of the
appeal).
AFFIRMED in part; DISMISSED in part.

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