Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1988)

MEMORANDUM^** 

Daniel DeNardo appeals the dismissal of his complaint for failure to state a claim. The complaint alleges that tax collectors converted his property for their private use and benefit. The district court refused DeNardo's request for documents which would have shown the tax collectors' scope of authority. The district court held the tax collectors were absolutely immune from a state law tort action, that "special factors" precluded a damages action against the collectors in their individual capacities, and dismissed the complaint. DeNardo appeals.

The dismissal for failure to state a claim was proper. DeNardo's complaint does not contain any specific allegations of statutory or constitutional violations by tax collectors, which might overcome the defense of qualified immunity to which government officials in the performance of discretionary duties are entitled. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We have no trouble deciding that the duties involved in this case are discretionary, as tax collectors enjoy considerable discretion in locating and seizing the assets necessary to satisfy a taxpayer's deficiencies.

DeNardo nevertheless claims he was wrongfully denied access to documents that would have shown that the Internal Revenue Service Group assigned to collect his account acted without statutory authority. We disagree.

A trial court's refusal to permit further discovery is reviewed for abuse of discretion. Garret v. City and County of San Francisco, 818 F.2d 1515, 1518 (1987). The court did not abuse its discretion. The court denied DeNardo's motion to compel documents on March 11, 1988. Prior to that date, Roberta Schowen, the Chief of the Field Services Group, Collection Division of the Internal Revenue Service, had filed a declaration stating that her group was assigned the collection of DeNardo's account, and that she fulfilled her duties in good faith, in her capacity as a government official. The declaration was sufficient to answer in the affirmative the question which formed the basis of DeNardo's motion: whether Schowen acted within the scope of her authority. There was no reason for the district court to further compel production of documents to the same effect. DeNardo's failure to specifically plead statutory or constitutional violations subsequent to this declaration is therefore fatal.

AFFIRMED.