Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1988)

MEMORANDUM^** 

Ernest Colton appeals pro se the district court's dismissal of his complaint against the IRS, Treasury Secretary James Baker, Regional Commissioner Thomas Coleman, and other unnamed IRS officials. Colton contends that the district court erred by dismissing his action for lack of subject matter jurisdiction and failure to state a claim.

FACTS

The IRS erroneously sent Colton an $8,259.96 1981 tax refund check in 1983 that Colton asserts he never received. To recover the erroneous refund, the IRS levied on Colton's North Carolina bank account for $8,155.78 and applied Colton's 1982 tax refund and interest ($936.26) to the deficiency. The bank account levy is the subject of a separate action; the IRS has apparently repaid Colton the amount levied. In this action, Colton seeks the 1982 refund, damages, and injunctive relief.

DISCUSSION

1982 Refund. As a claim for tax refund, Colton's claim for his 1982 refund and interest is barred by the statute of limitations. 26 U.S.C. § 6532(a) (1) (1967) (refund suits must commence within two years of notice of disallowance of claim). As such, the claim was properly dismissed by the district court.

Damages. Colton seeks monetary damages for alleged violations of his constitutional rights by IRS officials. The United States and its officers, when sued in their official capacity, are immune from suits seeking monetary relief without prior consent. Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). Officials sued in their personal capacities are not entitled to the defense of sovereign immunity. However, without personal service in accordance with Rule 4(d) of the Federal Rules of Civil Procedure, the court is without jurisdiction to hear claims brought against officials in their individual capacity. Id. at 1328. Colton mailed copies of the summons and complaint to the Internal Revenue Service officers. This does not meet the personal service requirement of Rule 4(d) (1). Thus, insofar as these officials were sued in their individual capacity, Rule 4(d) requires their dismissal from the suit. Id. The district court properly dismissed Colton's claim for money damages for lack of jurisdiction.

Injunctive Relief. Colton seeks broad injunctive relief against the IRS and its employees in the area of tax assessment and collection. This claim is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a) (1988 Supp.), and was properly dismissed.

Failure to State a Claim. Dismissal for failure to state a claim is appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Because Colton's claims were barred by statute or the court lacked jurisdiction over the claim, the complaint was properly dismissed.

CONCLUSION

The district court's dismissal of Colton's complaint is affirmed.