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TOWERS v. MYLES (2021)

United States Court of Appeals, Ninth Circuit.2021-02-23No. No. 19-16684

Summary

Holding. The court affirmed the district court's dismissal of the Towers' action.

Roger and Catherine Towers appealed the district court's dismissal of their federal claims regarding land use designation of their property and a restraining order. The appellate court found that the Towers failed to properly raise several arguments in their opening brief, including challenges to claim and issue preclusion, recusal of judges, and the appropriateness of magisterial review. Because these arguments were not adequately presented on appeal, the court did not consider them.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Waiver of arguments not raised in opening brief
  • Claim and issue preclusion as grounds for dismissal
  • Judicial disqualification and recusal
  • De novo review standards for magistrate judge findings

Procedural posture

The Towers appealed pro se from a district court judgment dismissing their federal claims to the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM **

Roger David Towers and Catherine Towers appeal pro se from the district courts judgment dismissing their action alleging federal claims related to the land use designation of their property and a restraining order against Mr. Towers. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

In their opening brief, plaintiffs fail to raise, and therefore have waived, any challenge to the district courts dismissal of their action as barred by claim and issue preclusion. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims that were not actually argued in appellants opening brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by argument in pro se appellants opening brief are waived).

On February 28, 2020, a panel denied plaintiffs’ motion for disqualification of the magistrate judge and district judge. The February 28, 2020 order further stated that “[n]o motions for reconsideration, clarification, or modification of this denial shall be filed or entertained,” and that plaintiffs should not raise these same arguments in the opening brief. Accordingly, we do not consider plaintiffs’ contentions related to the issue of recusal of the magistrate judge and district judge.

We reject as without merit plaintiffs’ contentions that the district judge failed to conduct a de novo review of the magistrate judges findings and recommendations, and that the action was erroneously referred to the jurisdiction of the magistrate judge.

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.