Towers v. Myles
| Decision Date | 07 June 2019 |
| Docket Number | No. 2:18-cv-02996-JAM-KJNPS,2:18-cv-02996-JAM-KJNPS |
| Parties | ROGER TOWERS, et al., Plaintiffs, v. J. MARK MYLES, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiffs Roger and Catherine Towers, who proceed without counsel, initiated this action on November 19, 2018, and paid the filing fee.1 (ECF No. 1.) Pending before the court are defendants' motion to dismiss and plaintiffs' motion for recusal. (ECF Nos. 8, 14.) Plaintiffs opposed defendants' motion to dismiss, and defendants replied. (ECF Nos. 19, 20) Defendants opposed plaintiffs' motion for recusal. (ECF No. 21.) The court took these matters under submission on the briefing pursuant to Local Rule 230(g). (ECF Nos. 13, 17.)
After carefully considering the parties' briefing, the court's record, and the applicable law, plaintiffs' motion for recusal is DENIED. The court also recommends that defendants' motion to dismiss be GRANTED and plaintiffs' complaint be DISMISSED WITH PREJUDICE for the following reasons.
The complaint brings claims against the County of San Joaquin ("County") and several individual defendants based upon alleged violations of plaintiffs' First Amendment rights pursuant to 42 U.S.C. § 1983; alleged conspiracy to obstruct justice pursuant to 42 U.S.C. § 1985(2); and alleged neglect to prevent pursuant to 42 U.S.C. § 1986. (See generally Complaint, ECF No. 1 ["Compl."].)
A close review of the complaint reveals that the underlying allegations are based on two categories of claims that plaintiffs have raised in previous cases: claims about the County's land use designation of plaintiffs' property as Open Space/Resource Conservation ("OS/RC") and claims about a 2016 restraining order the County obtained against Roger Towers.
Indeed, plaintiffs admit that they have been challenging the County's land use designation of their property for the last 18 years. (Compl. ¶ 10.) As defendants point out, this is plaintiffs' sixth lawsuit against the County (see ECF No. 9 at 5), and at least the seventh matter in which Roger Towers and the County are both parties:
"Towers I," a 2004 state court challenge to the land use designation, Roger and Catherine Towers v. County of San Joaquin, Case No. CV-2004-0007721 (June 18, 2004) (see Defendants' Request for Judicial Notice, ECF No. 10 ["RJN"], Ex. 1.);2
"Towers II," a 2009 state court challenge to the land use designation, Towers v. Cty. of San Joaquin, No. C073598, 2017 WL 3275178, (Cal. Ct. App. Aug. 2, 2017), reh'g denied (Aug. 28, 2017), review denied (Nov. 1, 2017);
"Towers III," a 2014 state court challenge to a County ordinance benefitting mining operators. Towers v. Cty. of San Joaquin, No. C080667, 2018 WL 671356, at *1 (Cal. Ct. App. Feb. 2, 2018).
//// "Towers IV," a 2016 federal court challenge to the County's 2035 General Plan, which incorporated the disputed land use designation, Towers et al. v. Villapudua et al., Case No. 2:16-CV-02417-MCE-KJN;
"Towers V," a 2017 federal court challenge to the County's 2035 General Plan/land use designation and the 2016 restraining order, Towers v. County of San Joaquin, Case No. 2:17-CV-02597-JAM-KJN; and
"County v. Towers," in which Roger Towers directly appealed the 2016 restraining order in state court, San Joaquin Cty. Counsel's Office v. Towers, No. C084030, 2018 WL 2424114, at *1 .
In March 2001, plaintiffs bought three adjacent parcels of land in southern San Joaquin County. Towers II, 2017 WL 3275178, at *3. Most of plaintiffs' property and the surrounding land was "designated by the County as OS/RC, an area of regional significance containing significant mineral resources." Id. Plaintiffs consulted with County staff before they purchased the property, and "[s]taff informed plaintiffs that the property was designated OS/RC in the county general plan adopted on July 29, 1992, and plaintiffs could not build on the land without first obtaining a 'site approval' from the County, which the County had discretion to approve or disapprove." Id. at *4.
From 2002 until 2008, plaintiffs submitted several applications and appeals to change the land use designation and to gain permission to develop the property and build residences on the land. See Towers II, 2017 WL 3275178, at *4. The County denied each of plaintiffs' applications and appeals. Id.
In 2009, plaintiffs initiated Towers II in San Joaquin County Superior Court, seeking to overturn the County's decisions related to the land use designation. The San Joaquin County Superior Court ultimately entered judgment against plaintiffs and the California Third District Court of Appeal affirmed, explaining in relevant part:
Towers II, 2017 WL 3275178, at *15-16, 28. Plaintiffs' petition for rehearing in Towers II was denied on August 28, 2017, and on November 1, 2017, the California Supreme Court denied plaintiffs' petition for review. See Id.
On September 29, 2016, the planning commission held a meeting on the proposed 2035 General Plan. (Compl. ¶ 25.) Roger Towers made critical public comments about the 2035 General plan, including his concern "of the impact of mining in the vicinity of his Property and because he was being denied use of his property." (Compl. ¶ 27.)
On October 25, 2016, the board of supervisors held a meeting to consider the proposed 2035 General Plan. (Compl. ¶ 37.) The County served Roger Towers with a temporary restraining order, a petition for a workplace violence restraining order, and a notice of hearing, based upon his allegedly threatening behavior against County employees Kerry Sullivan and Amy Skewes-Cox. (Compl. ¶ 38; see also RJN, Exs. 10, 11.)
Thereafter, the County initiated County v. Towers, in which the superior court issued a three year workplace violence restraining order against Roger Towers. (Compl. ¶ 49; see also RJN, Exs. 12, 13.) On appeal, the Third District Court of Appeal affirmed the lower court decision, and concluded that "substantial evidence supports the issuance of the order, and that the order did not violate Roger Towers's right of free speech." County v. Towers, No. C084030, 2018 WL 2424114, at *1.
On October 11, 2016, plaintiffs filed Towers IV in this court against the County and several other defendants, raising several allegations related to the land use designation of plaintiffs' property. 2:16-CV-02417-MCE-KJN, ECF No. 1. The complaint included a claim that the County violated plaintiffs' substantive due process, based upon allegations that "COUNTY staff and its consultants have intentionally misrepresented, and intentionally delayed, the background reports and information intended to be included within, and support, the General Plan 2035 update." Id., ECF No. 1 at 21. With several motions to dismiss pending, plaintiffs voluntarily dismissed Towers IV on December 8, 2016. Id., ECF No. 28.
On December 8, 2017, Roger Towers filed Towers V in this court against the County and several other defendants, challenging the land use designation in the 2035 General Plan, and the 2016 restraining order obtained by the County. 2:17-CV-02597-JAM-KJN, ECF No. 1. After a motion to dismiss, the court determined that Roger Tower's claims were barred by claim preclusion, issue preclusion, and Younger v. Harris, 401 U.S. 37, 38 (1971). 2:17-CV-02597-JAM-KJN, ECF Nos. 29 at 11-16; 36. Roger Towers appealed the dismissal to the Ninth Circuit Court of Appeals, which is still pending. Id., ECF No. 38.
On November 19, 2018, plaintiffs filed this action against the County and several other individuals, rehashing many of plaintiffs' long-standing complaints regarding the land use designation and the 2016 restraining order. (See Compl.) The pending motion to dismiss and motion for recusal followed. (ECF Nos. 8, 14.)
"Federal judges are required by statute to recuse themselves from any proceeding in which their impartiality might reasonably be questioned." Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 714 (9th Cir. 1990); see 28 U.S.C. § 455(a) "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned"); see also 28 U.S.C. § 144 ().
"[T]he test for [judicial] recusal is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Milgard Tempering, Inc., 902 F.2d at 714 (internal citations omitted). "The 'reasonable person' in this context means a ...
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