Uptergrove et al v. United States of America et al, No. 1:2008cv01800 - Document 16 (E.D. Cal. 2009)

Court Description: Memorandum decision granting 10 Motion to Dismiss for Lack of Jurisdiction, signed by Judge Oliver W. Wanger on 4/17/09. (Coffman, Lisa)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHARLES WAYNE UPTERGROVE, MARTHA GENE UPTERGROVE, Plaintiffs, 10 11 1:08-CV-01800-OWW-SMS MEMORANDUM DECISION GRANTING DEFENDANTS MOTION TO DISMISS (DOC. 10-2) v. 14 UNITED STATES OF AMERICA, UNITED STATES ATTORNEY MCGREGOR W. SCOTT, TRIAL ATTORNEY G. PATRICK JENNINGS, U.S. MARSHALS OFFICE, MARILYN COLLINS, DOES 1-100, 15 Defendants. 12 13 16 17 18 I. INTRODUCTION Plaintiffs Charles Wayne Uptergrove and Martha Gene 19 Uptergrove (collectively Plaintiffs ), appearing pro se, filed 20 suit against the United States of America ( United States ), 21 United States Attorney McGregor Scott ( Scott ), Trial Attorney 22 G. Patrick Jennings with the Tax Division of the United States 23 Department of Justice ( Jennings ), the United States Marshals 24 Office ( U.S. Marshals ), Internal Revenue Service ( IRS ) 25 employee Marilyn Collins ( Collins ), and Does 1-100 26 (collectively Defendants ). 27 U.S.C. § 1983 alleges that Defendants violated Plaintiffs 28 Seventh Amendment rights. The complaint brought under 42 Plaintiffs seek no damages, but 1 1 request equitable relief and injunctive relief against 2 defendants permanently restraining them from seizing and selling 3 their home. (Doc. 1, Compl. at p. 13.) 4 Before the court for decision is Defendants motion to 5 dismiss for lack of subject matter jurisdiction pursuant to 6 Federal Rule of Civil Procedure 12(b)(1) and for failure to state 7 a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). 8 The United States asserts that each defendant is entitled to 9 immunity from suit. Plaintiffs have not filed an opposition with 10 the court. Instead, Plaintiffs mailed a copy of their opposition 11 to the Fresno IRS office, which forwarded the opposition to 12 Defendants. 13 reply brief, filed April 3, 2009, as Exhibit A. 14 Oral argument was heard on April 13, 2009; Plaintiffs did not 15 appear. Defendants attached Plaintiffs opposition to their (Doc. 12.) 16 II. 17 18 BACKGROUND Plaintiffs claim arises from facts relating to two prior 19 lawsuits. (Compl. ¶ 1.) The first lawsuit, In re Charles 20 Uptergrove, DBA Urc Trucking, No. LA 88-14691-NRR, involving 21 Plaintiff Charles Wayne Uptergrove ( Charles ), began as a 22 Chapter 7 bankruptcy proceeding, but was later converted to a 23 Chapter 11 bankruptcy proceeding. 24 United States v. Uptergrove, No. 1:06-CV-01630-AWI-LJO (E.D. Cal. 25 Sept. 24, 2008) ( Uptergrove I ), the United States sought to 26 reduce Plaintiffs federal tax liabilities to judgment and 27 foreclose on real property owned by them. 28 to Plaintiffs refusal to cooperate during discovery, the 2 (Id.) In the second lawsuit, (Doc. 10-2 at 2.) Due 1 district court ordered sanctions and warned Plaintiffs that 2 failure to comply with the order could result in a default 3 judgment. 4 default judgment was subsequently entered, ordering the sale of 5 real property to satisfy unpaid federal tax liabilities and 6 unpaid sanctions. 7 the Ninth Circuit. 8 (Id.) Plaintiffs did not comply with the order and a (Id.) Uptergrove I is currently on appeal to (Id.) Plaintiffs allege here that in bringing Uptergrove I, Scott 9 and Jennings intentionally, knowingly, willfully, falsified 10 factual allegations against [Plaintiff] Martha Uptergrove in 11 which they falsely alleged that she was owner, operator, or 12 employee, of a business called Ikon Roofing, and owed taxes from 13 income relating to said business . . . . 14 Plaintiffs allege that Martha Gene Uptergrove ( Martha ) was not 15 involved with Ikon Roofing, rather, she was employed by the 16 Madera Water District. 17 was terminated from the Madera Water District due to the alleged 18 unlawful levying from her paycheck by the IRS. 19 does not seek damages for the alleged termination. 20 (Compl. ¶ 3.) (Compl. ¶ 2.) Martha alleges that she (Id.) Martha Plaintiffs further allege that IRS Agent Collins falsely 21 represented that Martha was an owner of Ikon Roofing. (Compl. ¶¶ 22 4, 5.) 23 the IRS to issue a wage levy order to Martha s employer, and the 24 seizing of Charles s property. 25 allege that Defendant United States intentionally omitted [and] 26 excluded . . . evidence . . . in Uptergrove I. Plaintiffs allege that Collins false statement prompted (Compl. ¶ 5.) 27 28 3 Plaintiffs also (Compl. ¶ 10.) III. 1 2 A. STANDARD OF DECISION Subject Matter Jurisdiction - Fed. R. Civ. Proc. 12(b)(1) 3 A court may only exercise subject matter jurisdiction in an 4 action against the Federal Government where (1) a statutory 5 authority vests the district court with subject matter 6 jurisdiction; and (2) the United States has waived its sovereign 7 immunity. See Alvarado v. Table Mountain Rancheria, 509 F.3d 8 1008, 1016 (9th Cir. 2007). Absent consent to sue, dismissal of 9 the action is required. Hutchinson v. United States, 677 F.2d 10 1322, 1327 (9th Cir. 1982). 11 12 B. Failure to State a Claim - Fed. R. Civ. Proc. 12(b)(6) 13 Federal Rule of Civil Procedure 12(b)(6) provides that a 14 motion to dismiss may be made if the plaintiff fails to state a 15 claim upon which relief can be granted. 16 grant a motion to dismiss, the court must accept all factual 17 allegations of the complaint as true and draw all reasonable 18 inferences in the light most favorable to the nonmoving party. 19 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); see also 20 Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). 21 avoid a Rule 12(b)(6) dismissal, a complaint need not contain 22 detailed factual allegations; rather, it must plead enough facts 23 to state a claim to relief that is plausible on its face. 24 Weber v. Dep t of Veterans Affairs, 521 F.3d 1061 (9th Cir. 2008) 25 (citing Bell Atl. v. Twombly, 550 U.S. 544; 127 S. Ct. 1955 26 (2007) (rejecting interpretation of Rule 8 that permits dismissal 27 only when the plaintiff can prove no set of facts in support of 28 his claim). In deciding whether to A court is not required to accept as true 4 To 1 allegations that are merely conclusory, unwarranted deductions of 2 fact, or unreasonable inferences. 3 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 4 than labels and conclusions is needed to provide the grounds for 5 relief. 6 478 U.S. 265, 286 (1986)). Sprewell v. Golden State Something more Bell Atl., 127 S. Ct. at 1965 (citing Papasan v. Allain, The court need not accept as true allegations that 7 8 contradict facts which may be judicially noticed. See Mullis v. 9 United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). 10 Matters of public record may be considered, including pleadings, 11 orders, and other papers filed with the court of records of 12 administrative bodies. 13 Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). 14 complaint may be disregarded if contradicted by facts established 15 by exhibits attached to the complaint. 16 988. 17 facts alleged in the complaint, documents attached to the 18 complaint when authenticity is not contested, and matters of 19 which the court may take judicial notice. 20 146 F.3d 699, 705-06 (9th Cir. 1988). 21 See Mack v. South Bay Beer Distrib., Allegations in the Sprewell, 266 F.3d at When ruling on a motion to dismiss, the court may consider Parrino v. FHP, Inc., Pro se complaints are held to less stringent standards than 22 formal pleadings by lawyers. Haines v. Kerner, 404 U.S. 519, 520 23 (1972). 24 pleading liberally in determining whether a claim has been 25 stated, including pro se motions as well as complaints. 26 v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 27 832 F.2d 1132, 1137 (9th Cir. 1987). 28 when a plaintiff appears pro se in a civil rights case. A court must construe a pro se plaintiff s inartful 5 Zichko This is especially true Ferdik 1 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of 2 a pro se complaint without leave to amend is proper only if it is 3 absolutely clear that the deficiencies of the complaint could not 4 be cured by amendment. 5 1203-04 (9th Cir. 1988). Schucker v. Rockwood, 846 F.2d 1202, 6 IV. 7 DISCUSSION 8 A. Collateral Attack / Anti-Injunction Act 9 Defendants argue that Plaintiffs Complaint is an attempt 10 to collaterally [attack] the judgment entered against them in 11 [Uptergrove I]. 12 States sought to reduce Plaintiffs federal tax liabilities to 13 judgment and foreclose on real property owned by Plaintiffs. 14 (Id.) 15 the district court ordered sanctions and warned Plaintiffs that 16 failure to comply with the order could result in a default 17 judgment. 18 default judgment was subsequently entered, ordering the sale of 19 real property to satisfy unpaid federal tax liabilities and 20 unpaid sanctions. 21 the Ninth Circuit. 22 (Doc. 10-2 at 2.) In Uptergrove I, the United Due to Plaintiffs refusal to cooperate during discovery, (Id.) Plaintiffs did not comply with the order and a (Id.) Uptergrove I is currently on appeal to (Id.) The collateral attack doctrine precludes litigants from 23 collaterally attacking the judgments of other courts. 24 Providian Fin. Corp., 270 F.3d 895, 902 (9th Cir. 2001) (citing 25 Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995)). 26 States Supreme Court made clear: 27 28 Rein v. The United [I]t is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, 6 either by itself or by a higher court, its orders based on its discretion are to be respected. 1 2 Celotex, 514 U.S. at 313 (quoting Walker v. Birmingham, 388 U.S. 3 307, 314 (1967)(quotations omitted). 4 This case is a collateral attack upon Uptergrove I because 5 the only relief sought here by Plaintiffs is equitable and 6 injunctive relief to restrain Defendants from seizing and 7 selling the property at issue in Uptergrove I. (Doc. 10-2 at 8 3.) 9 Plaintiffs argue that a judicially created exception to the 10 Anti-Injunction Act permits them to collaterally attack the prior 11 (Doc. 12-2 at 7.)1 judgment. The Anti-Injunction Act, 26 U.S.C. 12 § 7421(a), bars lawsuits aimed at restraining the assessment or 13 collection of taxes.2 Plaintiffs contend that an exception to 14 the Anti-Injunction Act, as provided in Enochs v. Williams 15 Packing & Navigation Co., Inc., 370 U.S. 1, 7 (1962), allows them 16 to collaterally attack the judgment in Uptergrove I. (Doc. 12-2 17 at 14, 17.) 18 Enochs permits a lawsuit to enjoin collection of taxes if: 19 (1) under no circumstances could the Government ultimately 20 prevail; and (2) the taxpayer will suffer irreparable injury 21 without injunctive relief. Enochs, 370 U.S. at 7; see also Bob 22 23 24 1 Plaintiffs arguments are derived from their opposition submitted to the court via Defendants reply brief. (See Doc. 12, Exhibit A .) 25 2 26 27 28 The Anti-Injunction Act reads in pertinent part: Except as provided . . . no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. 26 U.S.C. § 7421(a). 7 1 Jones Univ. v. Simon, 416 U.S. 725, 742-46 (1974); Elias v. 2 Connett, 908 F.2d 521, 525 (9th Cir. 1990). 3 burden of pleading and proving facts to show that the government 4 cannot ultimately prevail. 5 29 (1976). 6 during the pendency of the original tax collection action, i.e., 7 Uptergrove I, and is only triggered when the government cannot 8 ultimately prevail. 9 exception in terms of the underlying tax collection action, i.e., A plaintiff has the Comm r v. Shapiro, 424 U.S. 614, 628- The Enochs exception, however, is only applicable See Enochs, 370 U.S. at 7 (discussing the 10 the original proceeding). 11 exception here because the government did prevail in Uptergrove I 12 (the original tax collection action), making it impossible for 13 them to establish that the government could not prevail in that 14 case. 15 Plaintiffs cannot assert the Enochs Plaintiffs cannot use this lawsuit to collaterally attack 16 the judgment in Uptergrove I. While an appeal is pending, the 17 district court s judgment is the law of the case unless and until 18 reversal by the Court of Appeals. 19 Accordingly, the relief Plaintiffs seek, an injunction against 20 foreclosure of their home, is barred. 21 Defendants motion to dismiss is GRANTED WITH PREJUDICE. See Celotex, 514 U.S. at 313. As to this form of relief, 22 Even if Plaintiffs sought damages or other forms of relief, 23 the analysis below reveals that any such claims are also barred. 24 25 B. Section 1983 Claim 26 Plaintiffs complaint alleges a Title 42 § 1983 claim 27 against the United States, Scott, Jennings, the U.S. Marshals 28 Office, and Collins. Each of these defendants is either a 8 1 federal entity or an employee of a federal agency. 2 Section 1983 provides: 3 Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 4 5 6 7 8 42 U.S.C. § 1983 (emphasis added). Section 1983 deals only with 9 those deprivations of rights that are accomplished under the 10 color of any State or Territory. Dist. of Columbia v. Carter, 11 409 U.S. 418, 424 (1973). Section 1983 does not apply to 12 actions of the Federal Government and its officers[, they] are 13 at least facially exempt from its proscriptions. Id. at 424-25; 14 see also Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1200 (9th 15 Cir. 1975)(finding a § 1983 action against federal officials 16 improper). Federal officials may be subject to suit for 17 deprivations of civil rights under Bivens v. Six Unknown Named 18 Agents, 403 U.S. 388, 397 (1971). Here, however, all of the 19 named defendants are, for the reasons set forth below, immune 20 from suit. 21 22 C. Defendants Immunities 23 The United States argues that each defendant is immune from 24 suit. (Doc. 10-2.) 25 1. United States 26 Defendant United States contends that, as a sovereign, it is 27 immune from suit. (Doc. 10-2 at 5.) 28 9 A court may exercise 1 subject matter jurisdiction in an action against the United 2 States where (1) a statutory authority vests the district court 3 with subject matter jurisdiction; and (2) the United States has 4 waived its sovereign immunity. 5 Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). 6 See Alvarado v. Table Mountain The United States is a sovereign and, as such, is immune 7 from suit without its prior consent. Hutchinson, 677 F.2d at 8 1327 (citing United States v. Shaw, 309 U.S. 495, 500-01 (1940)). 9 Here, Plaintiffs identify no statutory authority waiving the 10 United States sovereign immunity, nor does the record indicate 11 that the United States has otherwise waived its immunity. 12 As to defendant United States, Defendants motion to dismiss 13 for lack of subject matter jurisdiction is GRANTED WITH 14 PREJUDICE. 2. 15 16 U.S. Marshals Office Defendants argue that the U.S. Marshals, as an agency of 17 the sovereign, is also immune from suit. [S]overeign immunity 18 shields the Federal Government and its agencies from suit. 19 Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (emphasis 20 added). 21 Service, is entitled to sovereign immunity. 22 Center, 839 F. Supp. 345, 346 (E.D. Pa. 1993); see also Komongnan 23 v. U.S. Marshals Service, 471 F. Supp. 2d 1, 4 (D. D.C. 2006) 24 (dismissing action against U.S. Marshals Service in a Bivens 25 action because, as an agency of the United States, the U.S. 26 Marshals are immune from suit). 27 the record does not indicate, that the U.S. Marshals have 28 consented to suit, which leaves the U.S. Marshals immunity Fed. As an agency of the United States, the U.S. Marshals Delgado v. Detention Plaintiffs have not alleged, and 10 1 intact. 2 Defendants motion to dismiss for lack of subject matter 3 jurisdiction, as to the U.S. Marshals, is GRANTED WITH PREJUDICE. 4 3. 6 U.S. Attorney McGregor Scott, Trial Attorney G. Patrick Jennings, and IRS Official Marilyn Collins - Official Capacity Claims 7 Claims against government officials acting in their official 5 8 capacity are essentially suits against the United States. 9 Consejo de Desarrollo Economico de Mexicali, A.C. v. United 10 States of America ( Consejo ), 482 F.3d 1157, 1173 (9th Cir. 11 2007). 12 13 14 15 See In Consejo, the Ninth Circuit provided: [A] Bivens action can be maintained against a defendant in her or her individual capacity only, and not in his or her official capacity . . . . This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity . . . . 16 (internal citations and quotations omitted). Moreover, [t]he 17 bar of sovereign immunity cannot be avoided merely by naming 18 officers and employees of the United States as defendants. 19 Hutchinson, 677 F.2d at 1327. 20 Here, Scott, Jennings, and Collins are employees of the 21 United States: Scott is a U.S. Attorney, Jennings is a Trial 22 Attorney with the Tax Division of the U.S. Department of Justice, 23 and Collins is an IRS Agent. 24 against these individuals are claims against the sovereign and 25 are barred. 26 Any official capacity claims Defendants motion to dismiss for lack of subject matter 27 jurisdiction, as to Scott, Jennings, and Collins acting in their 28 official capacities, is GRANTED WITH PREJUDICE. 11 4. 1 U.S. Attorney McGregor Scott and Trial Attorney G. Patrick Jennings - Individual Capacity Claims 2 Scott and Jennings, as government prosecutors, are entitled 3 to absolute immunity from suit. See Fry v. Melaragno, 939 F.2d 4 832, 837 (9th Cir. 1991). Fry provides: If the government 5 attorney is performing acts intimately associated with the 6 judicial phase of the litigation, that attorney is entitled to 7 absolute immunity from damage liability. Id. Absolute 8 immunity is thus necessary to assure that judges, advocates, and 9 witnesses can perform their respective functions without 10 harassment or intimidation. Butz v. Economou, 438 U.S. 478, 512 11 (1978). The judicial process contains safeguards to ensure that 12 advocates are restrained, that is, they are restrained by their 13 professional obligations and by the judicial adjudicative process 14 itself. Id. Accordingly, federal prosecutors are absolutely 15 immune from claims of malicious prosecution. Flood v. 16 Harrington, 532 F.2d 1248, 1250-51 (9th Cir. 1976). 17 Here, Plaintiffs allege that Scott and Jennings made 18 fraudulent statements in the complaint and pleadings in 19 Uptergrove I. Specifically, Plaintiffs contend that Scott and 20 Jennings knowingly misrepresented the fact that Martha was not an 21 owner of Ikon Roofing, and as such, was not liable for federal 22 income taxes arising from that business. This alleged misconduct 23 engaged in by Scott and Jennings arises from the natural course 24 of litigation, i.e., filing the initial complaint, which involves 25 alleging facts in the pleadings, and subsequent pleadings. 26 Accordingly, both Scott and Jennings, as government prosecutors 27 are entitled to absolute immunity. 28 12 Defendants motion to dismiss for failure to state a claim 1 2 as to Scott and Jennings, as they are entitled to absolute 3 immunity, is GRANTED WITH PREJUDICE. 5. 4 IRS Agent Marilyn Collins- Individual Capacity Claim 5 Defendants argue that insofar as Collins is sued in her 6 individual capacity, she is not subject to suit. (Doc. 10-2 at 7 9.) Bivens relief is not available for allegedly 8 unconstitutional actions of IRS officials engaged in tax 9 assessment and collection. Adams v. Johsnosn, 355 F.3d 1179, 10 1188 (9th Cir. 2004). In Wages v. I.R.S., 915 F.2d 1230, 1235 11 (9th Cir. 1990), the plaintiff alleged that IRS agents engaged in 12 fraudulent and intimidating conduct. The court stated that it 13 has never recognized a constitutional violation arising from the 14 collection of taxes. Id. 15 Here, Plaintiffs allege that Collins made false statements 16 in her assessments of Plaintiffs tax liability, as the plaintiff 17 attempted to do in Wages. Allegations of fraudulent conduct will 18 not overcome the settled rule that a Bivens action cannot be 19 brought for the assessment and collection of taxes, as the 20 Internal Revenue Code provides adequate alternative remedies for 21 alleged misconduct. 22 Defendants motion to dismiss for failure to state a claim 23 is GRANTED WITH PREJUDICE. 24 // 25 // 26 // 27 // 28 13 V. 1 2 CONCLUSION For these reasons, Defendants motion to dismiss for lack of 3 subject matter jurisdiction is GRANTED, as to the United States, 4 the U.S. Marshals, and Scott, Jennings, and Collins as federal 5 officials acting in their official capacity. 6 to dismiss for failure to state a claim is GRANTED, as to Scott, 7 Jennings, and Collins, acting in their individual capacity. 8 to Does 1-100, Plaintiffs have failed to identify any additional 9 defendants. 10 Defendants motion As Defendants motion to dismiss as to Does 1-100 is GRANTED WITHOUT PREJUDICE. 11 Defendants shall lodge a form of order confirming these 12 findings with five (5) days following electronic service of this 13 memorandum decision. 14 15 SO ORDERED 16 Dated: April 17, 2009 17 18 19 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 20 21 22 23 24 25 26 27 28 14

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