William Scheidler v. James Avery ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SCHEIDLER, No. 15-35945
Plaintiff-Appellant, D.C. No. 3:12-cv-05996-RBL
v.
MEMORANDUM*
JAMES AVERY, individually and in his
official capacity as Kitsap County's
Assessor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
William Scheidler appeals pro se from the district court’s judgment
dismissing with prejudice his action arising from the denial of a property tax
exemption. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
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). Scheidler’s request for oral
argument, set forth in his opening brief, is denied.
Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) (dismissal for failure to state a
claim under Fed. R. Civ. P. 12(b)(6)); Stuewe v. Dep’t of Revenue, 991 P.2d 634,
636 (Wash. Ct. App. 2000) (proceedings before the Washington State Board of
Tax Appeals). We affirm.
The district court properly denied Scheidler’s state tax appeal because
Scheidler failed to identify any error in the state tax agencies’ decisions. See
Wash. Rev. Code §§ 34.05.570(3) (circumstances under which court may grant
relief from agency decision), 84.36.383(5) (definition of “disposable income”).
The district court properly dismissed Scheidler’s action because Scheidler
failed to allege facts sufficient to state any plausible claim. 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.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in denying Scheidler leave to
amend because amendment would have been futile. See U.S. ex rel. Lee v.
Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (setting forth standard of
review).
The district court did not abuse its discretion in denying Scheidler’s motion
for recusal of the district judge because Scheidler failed to identify a ground for
recusal. See 28 U.S.C. §§ 144, 455; Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th
2 15-35945
Cir. 2008) (standard of review).
We reject as meritless Scheidler’s contentions that the district court lacked
authority to decide the motions to dismiss, that federal pleading standards are
inapplicable, and that the district court failed to comply with this court’s prior
mandate.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
To the extent Scheidler seeks reconsideration of this court’s prior order
denying his petition for a writ of mandamus, see Scheidler v. U.S. Dist. Ct. for W.
Dist. Of Wash., Tacoma, No. 15-73135, his request is denied.
Appellees Avery, Miles, Haberly, and George’s motion for sanctions
(Docket No. 27) is denied. See Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th
Cir. 1989) (decision to award sanctions under Rule 38 is discretionary).
Appellee Washington State Bar Association’s motion to take judicial notice
(Docket No. 31) is granted.
AFFIRMED.
3 15-35945