Scheidler v. Avery et al

Filing 57

ORDER denying 56 Plaintiff's Motion to Disqualify; signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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WILLIAM SCHEIDLER,

CASE NO. C12-5996 RBL

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Plaintiff,

ORDER

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v.
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JAMES AVERY, et al.,
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Defendants.
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THIS MATTER is before the Court on Plaintiff Scheidler’s “Objection to the Court’s

15 Order” and “Motion to Disqualify WA state Bar Associates from hearing this Case” [Dkt. #56].
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Scheidler’s filing claims that by using the short hand version of the caption, the Court has

17 “dismissed” the remaining defendants. This is not correct. The Ninth Circuit held:
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The district court properly determined that Scheidler is not entitled to
relief under the federal criminal statutes he cited.
The district court also properly determined that Scheidler's first amended
complaint failed to state a federal constitutional claim, or a state criminal or
constitutional claim, upon which relief could be granted. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009 (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” (internal citations and quotation marks omitted)).
However, the district court abused its discretion in dismissing the first
amended complaint without leave to amend. See U.S. v. Corinthian Colleges, 655
F.3d 984, 995 (9th Cir. 2011 (“[D]ismissal without leave to amend is improper
unless it is clear, upon de novo review, that the complaint could not be saved by

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ORDER - 1

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any amendment.” (internal citation and quotation marks omitted)). See Akhtar v.
Mesa, 698 F.3d 1002, 1212 (9th Cir. 2012 (“A district court should not dismiss a
pro se complaint unless it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” (citation and internal quotation marks
omitted)). We therefore reverse and remand to allow Scheidler an opportunity to
amend his complaint.

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Dkt. #51; see 2105 WL 1404983 at *1 (Emphasis added, some internal citations omitted).
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Consistent with the Ninth Circuit’s Memorandum Opinion, the Court has provided Plaintiff an
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opportunity to amend his complaint to state a viable claim—against any of the current
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defendants. He must do so by May 19, 2015 (21 days from the date of the Order) or the case
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will be DISMISSED.
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The Ninth Circuit also held that Scheidler’s Complaint “incorporated by reference” a
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“Petition for Review of the Board of Tax Appeal’s September 6, 2102 decision” and that this
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Court had “not declined to exercise supplemental jurisdiction over that Petition.” This Court’s
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Order [Dkt. #55] instructed Mr. Scheidler to expressly seek such a review in his amended
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complaint, if that is, in fact, what he seeks. Scheidler’s “Objection” to this aspect of the Order is
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not clear.
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While Scheidler’s lengthy complaint clearly mentioned the underlying tax dispute, the
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relief he sought (and the bulk of the allegations he has made in this Court and in the Ninth
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Circuit) focused on the culpability of the various individual defendants. It did not address the
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Board of Tax Appeal’s decision, or seek to have it overturned:
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ORDER - 2

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15 [Dkt. #1-2].
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Scheidler sought the opportunity to amend his complaint, and he has been invited to do

17 so. If he seeks review of the Board of Tax Appeal’s September 6, 2012 decision, his complaint
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Scheidler also moves to “Disqualify WA State Bar Associates from hearing the case.”

20 This is a variation of Scheidler’s motion(s) for recusal that have been previously denied. [See
21 Dkt. Nos. 11, 28, and 37]. The Ninth Circuit affirmed that denial: “The district court did not
22 abuse its discretion in denying Scheidler's motion for recusal of the district court judge because
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ORDER - 3

1 Scheidler failed to identify a ground for recusal.” Dkt. #51, see 2105 WL 1404983 at *2. The
2 renewed motion similarly fails to state a ground for disqualification.
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The Motion is DENIED.

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IT IS SO ORDERED.

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Dated this 29th day of April, 2015.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER - 4