ORDER GRANTING DEFENDANTS' MOTION TO STAY

TROY L. NUNLEY, District Judge.

The matter is before the Court pursuant to Defendants Will Arcand and Stephen M. Testa's ("Defendants") motion to stay proceedings in this case. (ECF No. 5.) Plaintiff Daniel Tankersley ("Plaintiff") opposes the motion. (ECF No. 9.) For the reasons stated below, the motion to stay is GRANTED.

I. Factual Allegations

Plaintiff is a friend of Joseph Hardesty and Yvette Hardesty ("Hardesty"),1 the owners of the Big Cut Mine (the "mine"), located in El Dorado County, California. Before June 2010, Plaintiff possessed a "limited interest" in the mine. However, Plaintiff has never had authority to control activities at the mine. Plaintiff has never been an "operator" of the mine, as defined under California's Surface Mining and Reclamation Act of 1975 ("SMARA"), Cal. Pub. Res. Code § 2710 et seq. (Complaint, ECF No. 1 ¶ 4.)

In June 2010, the State Mining and Geology Board (the "Board") made a determination that Hardesty and Richard Churches ("Churches", another operator of the mine) did not have a vested right to mine the site pursuant to SMARA. (Compl. ¶ 6.) As a result of activities that allegedly occurred after this determination, the Board "issued a series of notices and orders to Hardesty and Richard Churches finding they had violated SMARA." (Compl. ¶¶ 7, 27.) Plaintiff has practical training and experience in the legal field, and has worked on legal matters involving Hardesty and Churches. (Compl. ¶ 5.) In June 2011, Plaintiff appeared at a Board meeting to accept documents relative to these alleged violations. (Compl. ¶ 7.)

After June 2011, the "Board hearing notices identified [Plaintiff], if at all, as an agent of Hardesty and Churches," but not as an "operator" as that term is used in SMARA. (Compl. ¶ 8.) See e.g. SMARA § 2731 ("`Operator' means any person who is engaged in surface mining operations, himself, or who contracts with others [to do so] on his behalf . . ."); § 2774.1(a)-(b) ("the lead agency or director may notify the operator of that [SMARA] violation" and an "order. . . shall not take effect until the operator has been provided a hearing"). Plaintiff states that at no time before or after June 2010, did he engage in surface mining operations at the mine, or contract with anyone to do so on his behalf. (Compl. ¶ 39.)

The Board issued an "Order to Comply" to Hardesty and Churches in September 2011. At a Board meeting in December 2011, the Board moved to include Plaintiff as a jointly named party to that order. (Compl. ¶¶ 32-33.)

On January 12, 2012, the Board issued an administrative penalty order against Hardesty, Churches, and Plaintiff for $750,000. On June 13, 2013, the Board issued a superseding order in the amount of $11,025,000.2 (Compl. ¶¶ 34, 36.)

Plaintiff alleges that Defendants violated his procedural and substantive due process right by, among other things, imposing penalties against him without a hearing and despite the fact that Plaintiff was not an operator as defined under SMARA. (Compl. ¶¶ 42-51.) Plaintiff alleges that Defendants are "personally and directly responsible" for the administration of penalties without notice or a hearing. (Compl. ¶ 3.)

The Board's June 13, 2013, order imposing penalties against Plaintiff, Churches, and Hardesty is the subject of actions currently pending in the California Superior Court, County of Sacramento, Case Numbers 2012-80001070 and 2013-80001561. (Compl. ¶ 40.)

Relative to the aforementioned state court actions, Defendants further represent: on February 14, 2012, Plaintiff, Hardesty, and Churches filed a petition for writ of administrative mandate challenging the Board's $100,000 penalty order and the Board's $750,000 penalty order. On July 12, 2013, Hardesty, Churches, and Plaintiff filed a petition for writ of administrative mandate challenging the Board's $11,025,000 penalty order. (ECF No. 5 at 4.)

On July 3, 2013, the Board filed a cross-complaint in the first administrative penalty action, against Hardesty, Churches, and Plaintiff, for declaratory and injunctive relief for operating the mine in violation of SMARA and for recovery of all administrative penalties assessed against them. (ECF No. 5 at 4.) On January 30, 2014, Hardesty, Churches, and Plaintiff answered the cross-complaint. The relevant state court actions have been related to one another and are currently pending in Sacramento County Superior Court. (ECF No. 5 at 4.)

II. Procedural History and Judicial Notice

Plaintiff filed the complaint in this matter on June 12, 2015. (ECF No. 1.) The complaint brings two causes of action for violations of Plaintiff's procedural and substantive due process rights under the Fourteenth Amendment and 42 U.S.C. § 1983 respectively.

Defendants filed a motion to stay on October 29, 2015. (ECF No. 5.) Plaintiff filed an opposition on February 11, 2016. (ECF No. 9.) Defendant filed a reply on February 18, 2016. (ECF No. 12.)

The Court GRANTS the parties' requests for judicial notice of documents filed in the related state court proceedings, state court dockets, and the federal court docket in a federal civil rights lawsuit brought by Joseph and Yvette Hardesty and other plaintiffs, Case No. 2:10-cv-02414. (ECF Nos. 5, 10, 13.) Plaintiff has objected that the Court cannot take judicial notice of the fact that Plaintiff is an "operator" under SMARA, based on a statement in the February 2012 petition that all petitioners, including Plaintiff, were operators. (ECF No. 11.) The Court will take judicial notice of the aforementioned documents to establish the fact of the related litigation, and for the fact that the parties in those actions made certain representations in their filings. The Court does not take judicial notice of these documents for the truth of those representations. See e.g. Stamas v. County of Madera, 795 F.Supp.2d 1047, 1061 (E.D. Cal. 2011) (taking judicial notice that declarations were filed in other litigation but declining to take judicial notice of the "factual support" in those declarations).

III. Analysis

A. Standard of Review

As an initial matter, Plaintiff invokes Fed. R. Civ. P. 7(b)(1)(B), which requires a party bringing a motion to "state with particularity the grounds for seeking the order." Plaintiff questions whether Defendants seek a stay on jurisdictional grounds under Rule 12(b)(1), because Defendants seek abstention under Younger v. Harris, 401 U.S. 37 (1971) and Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004); or whether Defendants seek a stay under Rule 12(b)(3) based on improper venue, which Defendants also reference in their motion. Plaintiff also questions whether Defendants bring a "facial" motion based on what has been pled, or a "factual" motion that calls for inquiry into evidence beyond the pleadings. (ECF No. 9 at 8-9.)

In their reply, Defendants reiterate that they seek a stay under Rule 12(b)(3) because this Court will be retaining jurisdiction of the case if a stay is granted, not dismissing it for lack of jurisdiction. See Meredith v. Oregon, 321 F.3d 807, 816 (9th Cir. 2003) ("in cases in which Younger applies, the federal courts have jurisdiction over the parties' claims; Younger abstention concerns whether they should exercise that jurisdiction"). Defendants also state their motion is "plainly a `facial attack' on the pleadings, as it is based solely on plaintiff's complaint and judicially noticeable documents." (ECF No. 12 at 8.)

The Court notes that neither party has cited Ninth Circuit authority expressly stating which Rule of Civil Procedure is the appropriate rule under which a party invokes Younger abstention. However, Defendants direct the Court to a recent Ninth Circuit decision which reviewed a district court's grant of abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941) and O'Shea v. Littleton, 414 U.S. 488 (1974). See Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014). There is similarity in the requirements for abstention under Pullman and O'Shea, and the requirements for abstention under Younger/Gilbertson, infra.3 In Courthouse, the Ninth Circuit wrote:

Id. at 779-80 (internal citations and quotations marks omitted). Courthouse also observed: "We have not squarely held whether abstention is properly raised under Rule 12(b)(6), Rule 12(b)(1), both, or neither." Id. at 779 n. 2. See e.g. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003); Scotts Co. LLC v. Seeds, Inc., 688 F.3d 1154, 1159-60 (9th Cir. 2012); Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 881 (9th Cir. 2011) (noting that "petitioners intervened . . . and moved to dismiss under [Rules] 12(b)(6) and 12(b)(1), or in the alternative to abstain from deciding the case"). "This case does not require us to decide which Rule, if either, provides the correct vehicle for a motion to abstain." Courthouse, 750 F.3d at 779 n. 2.

Defendants do not cite authority finding that a motion to stay under Younger must be brought as a 12(b)(3) motion. However, Defendants state their motion is "plainly a `facial attack' on the pleadings, as it is based solely on plaintiff's complaint and judicially noticeable documents." (ECF No. 12 at 8.) Plaintiff also objects to Defendants' reliance on extra-pleading evidence for making their case. (ECF No. 9 at 9; ECF No. 11.) Plaintiff submits that he "in no way intends to convert defendants' seeming facial attack (based upon their use of a request for judicial notice) into a factual attack." (ECF No. 9 at 9.) Based on Courthouse, supra — and because both parties acknowledge the instant motion as a facial motion — the Court construes the facts in the complaint to be true for the purposes of this motion.4 The Court also accepts as true the fact that particular state and federal court actions are pending, and that representations made in the attached filings (ECF Nos. 5, 10, 13) were in fact made, although the content of those representations is not accepted as true.

It has been stated that, "Younger generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings." Diamond "D" Const. Corp. v. McGowan, 282 F.3d 191, 198 (2nd Cir. 2002). "Although the Younger abstention doctrine was born in the context of state criminal proceedings, it now applies with equal force to state administrative proceedings." Id. "This doctrine of federal abstention rests foursquare on the notion that, in the ordinary course, a state proceeding provides an adequate forum for the vindication of federal constitutional rights." Id. (internal quotation marks omitted).

In Gilbertson, supra, plaintiff's land surveyor's license was revoked by the Oregon State Board of Examiners for Engineering and Land Surveying. After a hearing, the board refused to reinstate plaintiff's license. Plaintiff appealed the board's decisions to the Oregon Court of Appeals. While the appeals were pending, plaintiff filed a federal action under 42 U.S.C. § 1983, seeking money damages. The district court dismissed the action on the basis of Younger abstention. On appeal, the Ninth Circuit held that stay, rather than dismissal, was appropriate. Gilbertson, 381 F.3d 965 ("federal courts should not dismiss actions where damages are at issue; rather, damages actions should be stayed until the state proceedings are completed"). In the instant case, Gilbertson provides an appropriate framework for analysis because Plaintiff also has filed an action for damages under 42 U.S.C. § 1983; there are pending state court actions initiated by Plaintiff, one of which Defendants responded to with a cross-complaint; and Defendants have moved for a stay in this Court on the basis of Younger abstention.

As stated in Gilbertson: "Younger principles apply in an action for damages pursuant to 42 U.S.C. § 1983 in which the federal plaintiff brings a constitutional challenge to a state proceeding when [1] that proceeding is ongoing; [2] the state proceeding is of a judicial nature, implicating important state interests; and [3] the federal plaintiff is not barred from litigating his federal constitutional issues in that proceeding." Id. at 984 (numbers added). Additionally, [4] the federal action must enjoin, or have the "practical effect" of enjoining, the state court action. Potrero Hills, 657 F.3d at 882 (9th Cir. 2011) (citing AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148-49 (9th Cir. 2007)) (number added).

B. Defendants' motion to stay: Younger abstention

Plaintiff does not respond specifically to Defendant's arguments on these four requirements. Plaintiff argues the bad faith exception to the Younger doctrine must defeat Defendant's motion for a stay; that argument is addressed, infra. However, as a threshold matter the Court finds Defendants meet the burden of showing Younger abstention is appropriate. For clarity, the Court restates Defendants' position as to the four Younger requirements.

Defendants argue the first requirement is met because their "state-initiated enforcement proceedings," i.e. its cross-complaint filed on July 3, 2013 in state court, were filed before the instant federal action. (ECF No. 5 at 6.) The "critical question is not whether the state proceedings are still `ongoing', but whether `the state proceedings were underway before initiation of the federal proceedings.'" Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987) (citing Fresh Int'l Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1358 (9th Cir. 1986)). The parties do not dispute that the relevant state court actions are pending, and the parties in those actions are contesting the imposition of penalties. Therefore, the first requirement for Younger abstention is met.

Second, Defendants argue that their SMARA enforcement proceedings implicate state interests. "Where the state is in an enforcement posture in the state proceedings, the `important state interest' requirement is easily satisfied, as the state's vital interest in carrying out its executive functions is presumptively at stake." Potrero Hills, 657 F.3d at 883-884. Defendant submits that SMARA seeks to prevent and minimize adverse environmental effects, reclaim mined lands to a useable condition, produce and conserve minerals, and eliminate certain public health and safety hazards. (ECF No. 5 at 7.) Defendants thus have stated an appropriate state interest. See e.g. Woodfeathers, Inc. v. Washington Cty., Or., 180 F.3d 1017, 1021 (9th Cir. 1999) ("the County's enforcement of its solid waste ordinance implicates important state interests for the purpose of Younger v. Harris").

Third, Defendants argue that "[s]tate courts are `presumed adequate to raise federal questions in the absence of unambiguous authority to the contrary.'" Id. at 1020 (quoting Pennzoil Co v. Texaco, Inc., 481 U.S. 1, 15 (1987)). Elsewhere in his opposition, Plaintiff argues that no federal civil rights claims have been pleaded in the state court action. (ECF No. 9 at 16.) Plaintiff also argues that the state court proceedings are not similar because they involve Hardesty, Churches, and the Board, whereas this action is restricted to Plaintiff and the individual Defendants. (ECF No. 9 at 16.) However, the July 12, 2013, petition for writ of mandate seeks redress for the Board's alleged abuse of discretion and imposition of penalties without due process. (July 12, 2013 Petition, ECF No. 5-4 ¶ 30). Plaintiff has also asserted affirmative defenses in state court on the basis that he, Hardesty, and Churches were "denied constitutional due process in the decision of the [Board] to impose an excessive penalty and such penalty violates due process under the United States Constitution." (Answ. to July 3, 2013 Cross Compl., ECF No. 5-6 at 14.) Plaintiff does not cite authority which would bar his being able to raise these federal questions in state court. Woodfeathers, 180 F.3d at 1020. Therefore, the Court finds the third requirement for Younger abstention is met.

Fourth, Defendants argue this action will have the practical effect of enjoining the state court proceedings. Defendants submit that in order to determine whether Plaintiff is entitled to damages in this action, the Court will be required to determine, among other things, whether Board staff committed a constitutional violation in assessing penalties against Plaintiff and whether Plaintiff can be considered an "operator" within the meaning of SMARA. If the state court determines that no constitutional violation occurred or that Plaintiff is considered an "operator", it may preclude the need for this Court to adjudicate this action. Plaintiff does not explain why he cannot (or will not) make the argument in state court that he is not an "operator" under SMARA. On this issue, Defendants direct the Court to Gilbert, 381 F.3d at 979-80, which held:

Here, there are material, overlapping issues that would be decided by this Court and the state court. The concerns stated in Gilbert are implicated here. Thus, the Court finds that the fourth requirement for Younger abstention is met.

Based on the foregoing, the Court finds that all four requirements are met, thus, Defendants meet their burden of showing this matter should be stayed under the Younger doctrine.

C. Plaintiff's opposition and Defendants' reply: bad faith exception to Younger

Plaintiff argues Younger abstention is inapplicable because administrative proceedings were imposed against him to retaliate against him and to harass him. "Despite the strong policy in favor of abstention, a federal court may nevertheless intervene in a state proceeding upon a showing of `bad faith, harassment or any other unusual circumstance that would call for equitable relief.'" Diamond, 282 F.3d at 198 (citing Younger, 401 U.S. at 54). "However, a plaintiff who seeks to head off Younger abstention bears the burden of establishing that one of the exceptions applies." Id.

Plaintiff argues section 2774.1 of SMARA does not authorize the Board to impose penalties against him as an "agent" of an operator, and Plaintiff's status is in fact that of "agent". Plaintiff points out that the Board never held a hearing in which he was identified as an operator, and he was not listed as such in the vested rights application that Churches and Hardesty submitted to the Board. Plaintiff also alleges "categorically that he never engaged in surface mining at Big Cut Mine, and had no power to dictate, direct, or control any activities that occurred at Big Cut Mine." (ECF No. 9 at 10.) Plaintiff thus disputes factually and legally whether he meets the requirements for an operator under SMARA.

Plaintiff also states he is "ready to submit the following in an amended pleading or through declaration testimony": During the past 20 years, he has represented himself in two civil rights lawsuits, and has provided paralegal assistance to attorneys in "defending or prosecuting approximately 20 over [sic] civil rights actions." (ECF No. 9 at 12.) Plaintiff was a paralegal for Hardesty in a civil rights action5 against Defendant Testa and other governmental officials, which "sought $100,000,000 in compensatory damages." (ECF No. 9 at 13.) In or around early 2011, after Hardesty filed the civil rights action, one of Hardesty's attorneys spoke with Testa about the possibility of dismissing him from the action, but Hardesty nonetheless retained Testa as a defendant, in part influenced by Plaintiff's advice. Hardesty terminated the attorney who opposed retaining Testa as a defendant. Plaintiff believes that the instant Defendants "took steps to have administrative penalties imposed upon him in retaliation for the role he played in Hardesty naming and retaining Testa as a defendant in Hardesty's civil rights action." (ECF No. 9 at 13.)

Defendants respond that Plaintiff cannot meet his burden of establishing the bad faith exception to Younger. Defendants argue that Plaintiff must show that "the party bringing the state action [has] no reasonable expectation of obtaining a favorable outcome." Diamond, 282 F.3d at 199 (quotation marks omitted). "A state proceeding that is legitimate in its purposes, but unconstitutional in its execution — even when the violations of constitutional rights are egregious — will not warrant the application of the bad faith exception." Id. The Ninth Circuit has found Younger abstention inapplicable where: "[plaintiff's] allegations . . . fall far short of establishing bad faith of the sort sufficient to invoke [the bad faith and harassment] exception. There was no allegation of repeated harassment by enforcement authorities with no intention of securing a conclusive resolution by an administrative tribunal or the courts, [] or of pecuniary bias by the tribunal." Partington v. Gedan, 961 F.2d 852, 861-62 (9th Cir. 1992).

Defendants argue that Plaintiff cannot meet this standard. First, the Board, not state defendant employees, imposed administrative penalties on Plaintiff. Defendants are staff to the Board and have no vote in its decisions. Cal. Pub. Res. Code §§ 660, 670-671. Plaintiff does not allege any "repeated harassment" or "pecuniary bias" by either the Board or Defendants. Partington, 961 F.2d at 861-862. Further, the Board's intention to secure a "conclusive resolution" of this dispute is demonstrated by its filing of a state court cross-complaint against Plaintiff for violations of SMARA and for recovery of the administrative penalties imposed. Id.

Second, Plaintiff's conclusory allegations of bad faith and retaliation are insufficient to satisfy his burden. Kirschner v. Klemons, 225 F.3d 227, 236 (2nd Cir. 2000) ("[m]ere conclusory allegations of bias are insufficient to overcome Younger"). While Plaintiff's complaint contains factual allegations in support of his contention that the Board violated his due process rights, there are not allegations regarding a bad faith or retaliatory motive (although there are allegations of bad faith in the opposition). But even assuming the truth of these allegations, Plaintiff does not show how the pending state enforcement proceeding by the Board is other than "legitimate in its purpose but unconstitutional in its execution," and as such "will not warrant the application of the bad faith exception." Diamond, 282 F.3d at 199.

Third, Plaintiff's reference to a civil rights action that he worked on is not sufficient to establish that the Board imposed penalties in retaliation. Even if the Board had improperly imposed penalties, there is no evidence that the individual Defendants, as opposed to the Board, caused the imposition of penalties in response to the civil rights action.

Fourth, the Board had a reasonable and good-faith belief that Plaintiff was liable for administrative penalties for illegal surface mining operations at the mine. For example, the February 2012 state court petition alleges that Plaintiff is an owner and operator of the mine.6 (ECF No. 5-3 ¶¶ 1, 3.) Plaintiff now submits a declaration from his former attorney who prepared that petition, stating that the attorney mistakenly made the allegation that Plaintiff was an operator of the mine. (ECF No. 11, Ex. 1 ¶ 3.) However, Defendants submit that said attorney did not prepare the declaration until over three years after he filed the February 2012 petition; that declaration was not filed in the state court proceeding; and Plaintiff has not amended the February 2012 petition to omit this allegation.7 (ECF No. 12 at 11.)

D. Conclusion

The two main legal and factual issues presented by the parties are: whether there is evidence of Defendants' bad faith attempt to enforce penalties against Plaintiff, and whether Plaintiff meets the requirements for an "operator" under SMARA. Both of those issues require factual inquiry, and it appears that inquiry or an overlapping one will be conducted in state court. Defendants concede that the Court may assume the factual allegations in the pleadings to be true, and Plaintiffs have expressly objected to Defendants' attempts to use extra-pleading evidence. (ECF No. 9 at 9; ECF No. 11; ECF No. 12 at 8.) Therefore, this Court rules on the instant motion to stay as a facial motion based upon the complaint and judicially noticeable documents. The Court also considers Plaintiff's proffer of what he would submit in an amended pleading or declaration, but only insofar as this proffer clarifies allegations in the complaint or moves the Court to seek additional briefing.

Based upon the allegations in the complaint and judicially noticeable documents, and Plaintiff's proffer in his opposition, Plaintiff has not met his burden of showing the bad faith exception to Younger applies. Plaintiff's complaint shows there is a dispute about whether he qualifies as an operator and whether that finding will dispose of the Board's claim that he is subject to penalties. Plaintiff's proffer in his opposition — that he was a paralegal on a civil rights action against Defendant Testa, and may have influenced that action's retaining of Testa as a Defendant — is an attenuated allegation. Even accepted as true, these allegations do not constitute "repeated harassment by enforcement authorities with no intention of securing a conclusive resolution by an administrative tribunal or the courts, [] or of pecuniary bias by the tribunal." Partington, 961 F.2d at 861-62. See also Baffert v. California Horse Racing Bd., 332 F.3d 613, 621 (9th Cir. 2003) (citing Kugler v. Helfant, 421 U.S. 117, 126 n. 6 (1975)) ("In the Younger abstention context, bad faith `generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction'"); Worldwide Church of God, Inc. v. State of Cal., 623 F.2d 613, 616 (9th Cir. 1980) ("Nor do the [plaintiff's] pleadings, in their present form, allege harassment or bad faith with sufficient specificity to trigger the [bad faith] Younger exception"). The facts pled by Plaintiff show that it is speculative whether bad faith exists, and that Plaintiff disputes whether the Board may impose penalties against Plaintiff.

The Court has considered Plaintiff's allegations in light of the two main authorities cited in his opposition. In Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82 (5th Cir. 1992), city police officers, pursuant to a warrant, searched and seized video equipment (among other items) from various adult-themed stores owned by plaintiff Nobby Lobby. An employee was later criminally charged in state court for violating § 16.01 of the penal code. Nobby Lobby then filed a federal § 1983 suit alleging that the search, seizure, and prosecution were done in bad faith and for the purpose of harassment. Nobby Lobby also sought a preliminary injunction against the pending state proceedings. The district court abstained from enjoining the pending state criminal proceedings, but did enjoin the city (and hence did not abstain under Younger) from continuing to seize equipment. The district court concluded that the city had acted in bad faith by repeatedly seizing equipment, because it knew that the Fifth Circuit had already determined the seized items were not within the purview of the state statute. See Universal Amusement Co. v. Vance, 559 F.2d 1286 (5th Cir. 1977); Nobby Lobby, Inc. v. City of Dallas, 767 F.Supp. 801, 807 (N.D. Tex. 1991) ("[T]he Court finds that the City did not have a good-faith belief it could gain valid convictions under its application of Section 16.01. This is particularly true in light of the fact that the ruling of the district court in Universal has been adopted by the highest criminal court of Texas. The short of the matter is that there was no tenable legal foundation.").

By contrast, the allegations in Plaintiff's complaint and opposition and the attached state court filings, show there is a dispute about whether penalties may be imposed against Plaintiff. In sum, Defendants' position is: Plaintiff falls within the definition of an operator, given that SMARA § 2731 includes those whose contract with others to conduct operations on their behalf; Plaintiff has participated in penalty proceedings on the owners' and operators' behalf; Plaintiff's 2012 petition identified him as an operator; and Plaintiff did not bring this issue to the Board until June 2015 at the earliest, about two years after the Board had issued its third and final penalty order. (ECF No. 12 at 12.) Plaintiff disputes this position, but the allegations in the complaint and Plaintiff's proffer in his opposition, even accepted as true, do not compel a finding that Defendants had no "good faith" or "tenable" belief that he was liable for penalties, and then additionally, caused the Board to impose those penalties. Nobby Lobby, 767 F. Supp. at 807.

Plaintiff also cites Cullen v. Fliegner, 18 F.3d 96 (2nd Cir. 1994). In Cullen, a school teacher was disciplined for protesting at a school board election. The school teacher brought a federal action seeking to enjoin the state disciplinary proceeding, and the district court found that the state prosecution was brought in bad faith. The Second Circuit agreed that the district court had properly not applied Younger abstention because the "specific findings" in the court's order showed disciplinary proceedings had been "brought in retaliation for the exercise of [plaintiff] Cullen's First Amendment right." Id. at 104. Those findings included that defendants (the school district and officials):

Id. at 104 (citing the district court's order, No. 93 CIV. 2569 (CLB), 1993 WL 625541 (S.D.N.Y. June 21, 1993)). In comparison, Plaintiff does not allege similar facts, substantively or in scope, which would lead to the conclusion that Defendants influenced the Board to retaliate against him by imposing penalties.

The Court underscores that "[s]tate courts are presumed adequate to raise federal questions in the absence of unambiguous authority to the contrary." Woodfeathers, Inc., 180 F.3d at 1020. It appears the factual and legal issues raised in Plaintiff's opposition to this motion — including their relevance to a procedural and substantive due process claim — can be adjudicated in the state court proceedings.

For the stated reasons, Plaintiff does not meet his burden of showing the bad faith exception to Younger abstention applies.8

IV. Conclusion

For the stated reasons, Defendants' motion to stay is GRANTED until "final adjudication of Case Nos. 34-2012-80001070 and 34-2013-80001561 currently pending in Sacramento County Superior Court." (ECF No. 5 at 11.)