United States District Court, N.D. California
ROBERT B. WISTER, Plaintiff,
DONALD R. WHITE, et al., Defendants.
ORDER GRANTING IFP AND DISMISSING COMPLAINT ON
INITIAL REVIEW; DENYING MOTION TO DISMISS AS MOOT Re: Dkt.
No. 1, 2, 11
William H. Orrick United States District Judge
case has a confused posture. Pro se plaintiff Robert B.
Wister filed and served on defendants a pleading titled
“Appeal From Decision of California Supreme
Court.” See Complaint (“Compl.”)
[Dkt. No.1]. It appears that Wister is alleging three federal
claims for violations of: (i) constitutional rights under 42
U.S.C. § 1983; (ii) Elder Abuse and Extortion Act under
42 U.S.C. § 3058i; and (iii) Elder Justice Act of 2009
under 42 U.S.C. § 1397j. Id. at 1. He also
claims violations of two state criminal statutes, California
Government Code sections 6200 and 6203. Id. at 2. In
addition, he has filed an application to proceed in forma
pauperis (“IFP”), which I grant. [Dkt. No.
granted the IFP, I must examine the initial pleading, which I
construe as a complaint despite its title, to ensure that it
alleges non-frivolous claims that can be pursued in this
court. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
If a complaint is frivolous or fails to state a claim, I am
required to dismiss the case. 28 U.S.C. § 1915(e)(2).
Defendants, having been served, have also filed a motion to
construed as an attempt to appeal a state court decision,
over which I would have no jurisdiction under the
Rooker-Feldman doctrine, or as a separate complaint,
where it is apparent that he cannot state a plausible claim,
Wister's complaint is frivolous. No amendment could cure
the problems identified below. Pursuant to my duty to review
the complaint prior to continuation of the litigation, I
DISMISS it with prejudice under § 1915(e)(2).
Defendants' motion to dismiss is therefore DENIED as
moot, all hearings are VACATED, and judgment shall be entered
in accordance with this Order.
claims involve a dispute that arose after the Alameda County
Treasurer's Office lost a check that Wister sent to pay a
tax bill. See Declaration of Raymond MacKay in
Support of Defendants' Motion to Dismiss Plaintiff's
Appeal [Dkt. No. 11-1], Ex. A (copy of June 25, 2019
California State Court of Appeals decision in Wister v.
Levy, Case No. A154751) (hereinafter “Appellate
December 2015, Wister sent the Alameda County Treasurer's
Office a check for $440.62 to pay the first installment of
his property taxes. Appellate Decision at 2. The Treasurer
informed Wister that it had lost his check. Id.
Wister asked his bank to invalidate that check, for which he
accrued a stop payment charge. Id. He then mailed a
new check for $427.62, representing the $440.62 due less $13
for a stop-payment charge, but the Treasurer returned that
check. Id. In April 2016, Wister issued a new check
for $440.62 to pay his next April 2016 tax installment.
Id. He mailed both this new check, and the
previously returned $427.62 check. Id. The Treasurer
applied the $440.62 check to his outstanding December 2015
installment, returned the $427.62 check, and demanded Wister
to properly pay the April 2016 installment, plus penalties.
the Treasurer did not accept the partial payment, Wister
sought a writ to compel the Treasurer to do so. Appellate
Decision at 2. The state trial court sustained demurrers to
Wister's first two writ petitions with leave to amend.
Id. at 3. The trial court's second order
identified omissions that were necessary to correct in order
to state a valid claim for a writ of mandate, but Wister
failed to correct those deficiencies. Id. at 3-4.
Wister appealed, and the state court of appeals affirmed the
trial court's dismissal without leave to amend.
Id. at 4.
now seems to appeal the state court of appeals decision and
pursue three federal law claims, two state law claims, as
well as exemplary damages against the Alameda County Tax
Collector Donald R. White and the Office of County Counsel,
which represented the County Tax Collector in the state trial
court and appellate proceedings. See Compl. at 1-2,
plaintiff is found to be indigent under 28 U.S.C. §
1915(a)(1) and is granted leave to proceed in forma pauperis,
courts must engage in screening and dismiss any claims which:
(1) are frivolous or malicious; (2) fail to state a claim on
which relief may be granted; or (3) seek monetary relief from
a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495
(9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2)
provides that a pleading must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Pleadings that lack such statement
have failed to state a claim.
determining whether a plaintiff fails to state a claim, the
court assumes that all factual allegations in the complaint
are true. Parks Sch. of Bus. v. Symington, 51 F.3d
1480, 1484 (9th Cir. 1995). However, “the tenet that a
court must accept a complaint's allegations as true is
inapplicable to legal conclusions [and] mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
663 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). The pertinent question is whether the
factual allegations, assumed to be true, “state a claim
to relief that is plausible on its face.” Id.
at 678 (citing Twombly, 550 U.S. at 570).
to meet this requirement, the complaint must be supported by
factual allegations. Id. Further, a complaint is
frivolous under § 1915 where there is no subject matter
jurisdiction. See Pratt v. Sumner, 807 F.2d 817, 819
(9th Cir. 1987) (recognizing the general proposition that a
complaint should be dismissed as frivolous under § 1915
where subject matter jurisdiction is lacking).
the complaint has been filed by a pro se plaintiff, as is the
case here, courts must “construe the pleadings
liberally . . . to afford the petitioner the benefit of any
doubt.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (citations omitted). “A district court
should not dismiss a pro se complaint without leave to amend
unless ‘it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.'”
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)
(quoting Schucker v. Rockwood, 846 F.2d 1202,
1203-04 (9th Cir. 1988) (per curiam)). Further, when it
dismisses the complaint of a pro se litigant with leave to
amend, “the district court must provide the litigant
with notice of the deficiencies in his complaint in order to
ensure that the litigant uses the opportunity to amend
effectively.” Id. (quoting Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).