Unpublished Disposition, 874 F.2d 818 (9th Cir. 1984)

MEMORANDUM

Wiideman appeals pro se the district court's dismissal of his civil rights action. The district court had jurisdiction pursuant to 28 U.S.C. § 1343(a) (3). We have jurisdiction over Wiideman's timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We review independently a district court's dismissal of an action for failure to state a claim under Fed. R. Civ. P. 12(b) (6). Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989). A Rule 12(b) (6) dismissal motion "can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim." Id., quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).

Wiideman sued Perez, a detective of the Las Vegas Metropolitan Police Department (Department); the Department; Wolfson, a deputy district attorney for Clark County; Clark County; the City of Las Vegas (Las Vegas); the State of Nevada (Nevada), and Continental National Bank (Continental). Nevada, Continental, and Las Vegas were never served. Wiideman's numerous claims arise out of a criminal investigation of his financial dealings. The investigation ultimately resulted in Wiideman's conviction on several counts of obtaining money under false pretenses. As part of the investigation of Wiideman, Perez and Wolfson went to Continental, where Wiideman maintained an account for Realty Trust of Nevada. Wiideman alleged that on or about December 3, 1984, Perez and Wolfson presented an illegal subpoena and obtained information regarding Wiideman's account.

Based on these events, Wiideman claimed, among other things, that he had been deprived of his rights to due process and equal protection. Wiideman claimed that Perez, Wolfson, Continental and the other defendants entered into an illegal conspiracy to freeze his account. Wiideman further alleged that Perez and Wolfson had acted pursuant to an unlawfully issued subpoena to induce Continental to freeze the account and to obtain Wiideman's private business records. Although Wiideman originally maintained that the subpoena was illegally obtained, on appeal he no longer disputes that the subpoena was lawful.

The district court, after "read [ing] and consider [ing] all relevant papers" in a three-volume record, dismissed Wiideman's due process count for failure to "allege [ ] a valid substantive claim." The district court also held that Wolfson was shielded by absolute immunity. On appeal, Wiideman attempts to defend his due process but not his other claims. He also argues that (1) Wolfson was not entitled to absolute immunity and (2) Clark County and the Department were liable for Perez's conduct under a theory of "knowledge and acquiescence." Because we agree with the district court that Wiideman failed to state a claim under the due process clause of the fourteenth amendment, we need not address Wiideman's prosecutorial immunity and "knowledge and acquiescence" arguments.

We agree with the district court that Wiideman's allegations fail to state a claim under the due process clause, particularly since Wiideman now concedes that the subpoena was legal. Wiideman has pointed to no authority that would support his claim or any amendment to his claim that collecting evidence of bank records as part of a criminal investigation and pursuant to a lawful subpoena would constitute a violation of due process.

As for Wiideman's allegation that the investigators induced the bank to freeze his account, we tend to agree with the district court that this too fails to state a claim given the legality of the subpoena. But even if Wiideman could devise an amendment to state such a claim, the record is clear that the district judge could have properly granted summary judgment on this aspect of Wiideman's claim. We may affirm on any ground supported by the record. Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). Indeed, the district court's assertion that its ruling was based on its " [h]aving read and considered all relevant papers on file" indicates that it may have granted summary judgment on this part of Wiideman's claim. See Lodge 1380, Brotherhood of Railway v. Dennis, 625 F.2d 819, 824-25 (9th Cir. 1980). Uncontroverted facts in the record show that Wiideman's account was closed, not frozen, and that this action was taken by the bank acting independently because of Wiideman's poor credit history.

Lastly, appellees seek attorneys' fees for this appeal pursuant to 42 U.S.C. § 1988. A prevailing defendant is entitled to attorneys' fees only if the plaintiff's appeal is "frivolous, unreasonable, or without foundation." Coverdell v. Department of Social & Health Services, 834 F.2d 758, 770 (9th Cir. 1987). We believe the standard has been met. Therefore, we grant attorneys' fees and assess double costs. We remand to the district court to set the attorneys' fees. The district court may also, if it so chooses, pursue the issue of whether the subpoena was a falsified document.

AFFIRMED; SETTING OF ATTORNEYS' FEES REMANDED TO THE DISTRICT COURT.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.