Timothy Dewitt v. California Citizens Redistrict , 705 F. App'x 594 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY A. DEWITT, No. 16-16162
Plaintiff-Appellant, D.C. No. 3:15-cv-05261-WHA
v.
MEMORANDUM*
CALIFORNIA CITIZENS
REDISTRICTING COMMISSION and
ALEX PADILLA,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted November 13, 2017**
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and GRITZNER,*** District
Judge.
Plaintiff-appellant Timothy DeWitt, proceeding pro se, appeals the district
*
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).
***
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
court’s order dismissing his second amended complaint without convening a three-
judge court which, he asserts, was required under 28 U.S.C. § 2284.1
Section 2284(a) provides: “[a] district court of three judges shall be
convened . . . when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide
legislative body.” Section 2284(b)(1) provides that “[u]pon the filing of a request
for three judges, the judge to whom the request is presented shall, unless he
determines that three judges are not required, immediately notify the chief judge of
the circuit, who shall designate two other judges” to serve as members of the three-
judge court. DeWitt asserts that his second amended complaint challenges the
constitutionality of California’s apportionment of congressional districts, and
therefore the district court was required to notify the chief judge of the circuit to
convene a three-judge court.
In Shapiro v. McManus, the Supreme Court explained that the portion of §
2284 that reads, “unless he determines that three judges are not required,” does not
grant district court judges discretion to ignore § 2284(a). 136 S. Ct. 450, 455
(2015). However, the Supreme Court went on to explain that if the claim is
1
The district court previously dismissed DeWitt’s original complaint sua sponte,
but DeWitt does not challenge this on appeal. DeWitt’s only claim on appeal is that
the district court improperly dismissed his second amended complaint without first
convening a three-judge court.
2
“wholly insubstantial,” the district court is not required to take the steps to convene
a three-judge court under § 2284(b). Id. at 456.
In his second amended complaint, DeWitt asserts that California’s districting
plans are unconstitutional because they are based on total population rather than
actual voter population. However, the Supreme Court has held that “jurisdictions
[may] measure equalization by the total population of state and local legislative
districts.” Evenwel v. Abbott, 136 S. Ct. 1120, 1126–27 (2016). Because Supreme
Court precedent expressly forecloses DeWitt’s claim, his claim qualifies as
“wholly insubstantial,” see Demarest v. United States, 718 F.2d 964, 966 (9th
Cir.1983), and the district court properly dismissed it without notifying the chief
judge of the circuit.
AFFIRMED.
3