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Wister v. White

United States District Court, N.D. California

December 16, 2019

ROBERT B. WISTER, Plaintiff,
v.
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

         This 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. 2].

         Having 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 dismiss.

         Whether 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.[1]

         BACKGROUND

         The 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 Decision”).[2]

         In 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. Id.

         When 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.

         Wister 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, 5.

         LEGAL STANDARD

         Where a 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.

         In 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).

         Thus, 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).

         Where 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)). ...


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