Timothy A. DEWITT, Plaintiff-Appellant, v. CALIFORNIA CITIZENS REDISTRICTING COMMISSION and Alex Padilla, Defendants-Appellees, 705 F. App'x 594

MEMORANDUM Plaintiff-appellant Timothy DeWitt, proceeding pro se, appeals the district court’s order dismissing his second amended complaint without convening a three-judge court which, he asserts, was required under 28 U.S.C. §

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 “[ujpon 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). - U.S. -, 136 S.Ct. 450, 455, 193 L.Ed.2d 279 (2015). However, the Supreme Court went on to explain that if the claim is “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, De-Witt 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, - U.S. -, 136 S.Ct. 1120, 1126-27, 194 L.Ed.2d 291 (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. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . The district court previously dismissed De-Witt’s original complaint sua sponte, but De-Witt does not challenge this on appeal. De-Witt’s only claim on appeal is that the district court improperly dismissed his second amended complaint without first convening a three-judge court.