Roger Towers v. James Myles ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER DAVID TOWERS; CATHERINE No. 19-16684
TOWERS,
D.C. No. 2:18-cv-02996-JAM-KJN
Plaintiffs-Appellants,
v. MEMORANDUM*
JAMES MARK MYLES; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Roger David Towers and Catherine Towers appeal pro se from the district
court’s 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In their opening brief, plaintiffs fail to raise, and therefore have waived, any
challenge to the district court’s 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 appellant’s opening brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.
1993) (issues not supported by argument in pro se appellant’s 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 judge’s 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.
2 19-16684