Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 888 F.2d 130 (9th Cir. 1989)

John Albert STRAND, Plaintiff-Appellant,v.STATE of California, Defendant-Appellee.

No. 87-6378.

United States Court of Appeals, Ninth Circuit.

Submitted May 3, 1989* .Decided Oct. 6, 1989.

Before POOLE, BEEZER, and TROTT, Circuit Judges.


MEMORANDUM*

Appellant John Albert Strand ("Strand") appeals from the dismissal of his complaint against the State of California for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Appellant filed suit against California for compensatory and punitive damages in the amount of $10 million dollars. He contends that he was discriminated against by not being allowed to file a joint income tax return. This contention is without merit.

The district court dismissed the action for want of subject matter jurisdiction, as suit is barred by the Eleventh Amendment. It, therefore, held that Strand failed to state a claim for which relief can be granted.

The Eleventh Amendment bars suits brought against a state by citizens of that state, absent an express waiver of immunity by the state. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985). No such waiver has been given in this case.

Additionally, this suit is barred by 28 U.S.C. § 1341. This section provides:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

This section was construed by the Supreme Court in California v. Grace Brethren Church, 457 U.S. 393, 411 (1981) as procluding district court jurisdiction to render declaratory judgment on the constitutionality of state tax provisions. The Court also stated that tax suits under the guise of 42 U.S.C. § 1983 actions are barred, unless the state remedies are not "plain, adequate, and complete...." Fair Assessment in Real Estate Ass'n. v. McNary, 454 U.S. 100, 116 (1981).

Because Strand has not utilized the state procedures for recovery of erroneously collected taxes, California Revenue and Taxation Code Sec. 19051 et seq., he has not attempted to pursue his state remedies. The federal courts are not the starting point for a refund of state taxes paid.

As the district court correctly found subject matter jurisdiction absent, we need not address the merits of Strand's claim. Accordingly, the judgment of the district court is

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and F.R.A.P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3