                           NOT FOR PUBLICATION                           FILED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.




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