Reyes v. Department of the Treasury/Internal Revenue Service of the United States, No. 1:2009cv00319 - Document 7 (E.D. Cal. 2009)
Court Description: AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 4/14/2009, Recommending to Dismiss Some Claims Without Leave to Amend, to Deem the Complaint Amended to Reflect the Substitution of the United States as the Defendant, and to Direct Service on Defendant United States of America. Motion referred to Judge O'Neill. (Objections to F&R due by 5/18/2009) (Figueroa, O)
Download PDF
<![CDATA[
Reyes v. Department of the Treasury/Internal Revenue Service of the United States Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JOAQUIN SERRANO REYES, 11 Plaintiff, 12 v. 13 14 15 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00319-LJO-SMS AMENDED FINDINGS AND RECOMMENDATIONS TO DISMISS SOME CLAIMS WITHOUT LEAVE TO AMEND, TO DEEM THE COMPLAINT AMENDED TO REFLECT SUBSTITUTION OF THE UNITED STATES AS THE DEFENDANT, AND TO DIRECT SERVICE ON DEFENDANT UNITED STATES OF AMERICA 17 18 Plaintiff is a prisoner who is proceeding pro se and in 19 forma pauperis with an action for damages and other relief 20 concerning alleged civil rights violations and tax refunds. The 21 matter has been referred to the Magistrate Judge pursuant to 28 22 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. Pending before 23 the Court is Plaintiff’s complaint, filed on February 20, 2009. 24 I. Screening the Complaint 25 A. Legal Standards 26 The Court must screen complaints brought by prisoners 27 seeking relief against a governmental entity or officer. 28 28 1 Dockets.Justia.com 1 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion 2 thereof if the Court determines that an allegation of poverty is 3 untrue or that the action is 1) frivolous or malicious, 2) fails 4 to state a claim upon which relief may be granted, or 3) seeks 5 monetary relief from a defendant who is immune from such relief. 6 28 U.S.C. §§ 1915A(b), 1915(e)(2). 7 “Rule 8(a)’s simplified pleading standard applies to all 8 civil actions, with limited exceptions,” none of which applies to 9 section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 10 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a 11 complaint must contain “a short and plain statement of the claim 12 showing that the pleader is entitled to relief . . . .” 13 Civ. P. 8(a). “Such a statement must simply give the defendant 14 fair notice of what the plaintiff’s claim is and the grounds upon 15 which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the 16 liberal pleading standard... applies only to a plaintiff’s 17 factual allegations.” Neitze v. Williams, 490 U.S. 319, 330 n.9 18 (1989). Fed. R. 19 Although a complaint attacked by a Rule 12(b)(6) motion to 20 dismiss does not need detailed factual allegations, a plaintiff 21 does not meet his or her obligation to provide the grounds of 22 entitlement to relief by supplying only conclusions, labels, or a 23 formulaic recitation of the elements of a claim. Bell Atlantic 24 Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Factual 25 allegations must be sufficient, when viewed in light of common 26 experience, to raise a right to relief above the speculative 27 level and to provide plausible grounds to suggest and infer the 28 element, or to raise a reasonable expectation that discovery will 2 1 2 reveal evidence of the required element. Bell, 127 S.Ct. at 1965. In reviewing a complaint under this standard, the Court 3 must accept as true the allegations of the complaint in question, 4 Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 5 (1976), construe the pro se pleadings liberally in the light most 6 favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 7 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, 8 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Once a claim has 9 been stated adequately, it may be supported by showing any set of 10 facts consistent with the allegations of the complaint, and it 11 may not be dismissed based on a court’s assessment that the 12 plaintiff will fail to find evidence to support the allegations 13 or prove the claim to the satisfaction of the finder of fact. 14 Bell, 127 S.Ct. at 1969. 15 If the Court determines that the complaint fails to state a 16 claim, leave to amend should be granted to the extent that the 17 deficiencies of the complaint can be cured by amendment. Lopez v. 18 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Dismissal 19 of a pro se complaint for failure to state a claim is proper only 20 where it is obvious that the Plaintiff cannot prevail on the 21 facts that he has alleged and that an opportunity to amend would 22 be futile. Lopez v. Smith, 203 F.3d at 1128. 23 A claim is frivolous if it lacks an arguable basis either in 24 law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A 25 frivolous claim is based on an inarguable legal conclusion or a 26 fanciful factual allegation. Id. A federal court may dismiss a 27 claim as frivolous if it is based on an indisputably meritless 28 legal theory or if the factual contentions are clearly baseless. 3 1 Id. 2 The test for malice is a subjective one that requires the 3 Court to determine whether the applicant is proceeding in good 4 faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 5 (1915); see Wright v. Newsome, 795 F.2d 964, 968 n. 1 (11th Cir. 6 1986). A lack of good faith is most commonly found in repetitive 7 suits filed by plaintiffs who have used the advantage of cost- 8 free filing to file a multiplicity of suits. A complaint may be 9 inferred to be malicious if it suggests an intent to vex the 10 defendants or abuse the judicial process by relitigating claims 11 decided in prior cases, Crisafi v. Holland, 655 F.2d 1305, 1309 12 (D.C.Cir. 1981); if it threatens violence or contains 13 disrespectful references to the Court, id.; or if it contains 14 untrue material allegations of fact or false statements made with 15 knowledge and an intent to deceive the Court, Horsey v. Asher, 16 741 F.2d 209, 212 (8th Cir. 1984). 17 18 B. Plaintiff’s Complaint Plaintiff alleges that he was denied refunds on his income 19 tax for tax years 2001 ($4008.00), 2002 ($85.00), and 2004 20 ($128.45). He alleges that he was entitled to the earned income 21 tax credit. He states generally that he filed claims, pertinent 22 documents are attached to the complaint, he appealed the decision 23 within the Internal Revenue Service (IRS), and his claim was 24 denied.1 At this point in the proceeding, and in the context of 25 26 27 28 1 A plaintiff may attach a copy of a document to the complaint and incorporate it by reference; such a document become a part of the pleading for all purposes.. Fed. R. Civ. P. 10(c). Attaching a defendant’s document as an exhibit to the complaint does not necessarily establish the truth of the defendant’s unilateral statements; rather, it is necessary to consider why a plaintiff attached the documents, who authored the documents, and the reliability of the documents. Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 455 (7 th Cir. 1998). Further, when the 4 1 construing this pro se plaintiff’s complaint, the Court considers 2 the attachments for the purpose of establishing Plaintiff’s 3 filing of a claim and the denial of the claim for a refund. 4 The attached documents reflect that a claim with respect to 5 the 2001 tax refund was made and was disallowed (Cmplt. p. 6); on 6 June 11, 2008, Plaintiff was informed by the appeals officer that 7 review of his claim had been completed; there was no basis to 8 allow the claim; and Plaintiff could pursue the matter by filing 9 suit in the United States District Court within two years of 10 August 31, 2007. (Cmplt. p. 20.) 11 C. Civil Rights Action pursuant to 42 U.S.C. § 1983 12 Plaintiff’s complaint is stated on a civil rights complaint 13 form. Further, Plaintiff alleges that the defendants in the suit 14 include not only the Internal Revenue Service, but also numerous 15 named employees of the IRS who work as operations managers, 16 appeals officers, field compliance service workers, etc. (Cmplt. 17 pp. 2-3.) 18 19 20 21 22 23 The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 24 42 U.S.C. § 1983. To state a claim pursuant to § 1983, a 25 plaintiff must plead that defendants acted under color of state 26 law at the time the act complained of was committed and that the 27 28 document in question is not the very subject of the claim, a plaintiff is not required to adopt the entire exhibit as true. Id. 5 1 defendants deprived the plaintiff of rights, privileges, or 2 immunities secured by the Constitution or laws of the United 3 States. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 4 1986). 5 There is no allegation in the complaint before the Court 6 that any Defendant was acting under color of state law. Further, 7 there are no facts that would support an inference of action 8 under color of state law. 9 It is established that § 1983 provides no claim against 10 federal officers acting under color of federal law. Billings v. 11 United States, 57 F.3d 797, 801 (9th Cir. 1995). 12 Thus, any claim pursuant to § 1983 must be dismissed. 13 Further, because the named defendants are federal officers, any 14 opportunity to amend with respect to them would be futile. 15 16 17 18 Accordingly, it will be recommended that the allegations be dismissed without leave to amend. D. Sovereign Immunity 1. The United States 19 The United States, as a sovereign entity, is immune from 20 suit except when it consents to be sued; the terms of its consent 21 to be sued in a court define that court's jurisdiction to 22 entertain the suit. United States v. Dalm, 494 U.S. 596, 608 23 (1990). It is the plaintiff’s burden to establish the 24 jurisdiction of the court, and thus to show a waiver of sovereign 25 immunity. See McNutt v. General Motors Acceptance Corp., 298 U.S. 26 178, 188 (1936). 27 Title 26 U.S.C. § 7422(a) grants a waiver of sovereign 28 6 1 immunity to permit jurisdiction under 28 U.S.C. § 13462 for tax 2 refund actions. Section 7422(a) provides: 3 8 (a) No suit prior to filing claim for refund.--No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof. 9 A refund claim is a prerequisite to jurisdiction; a United States 4 5 6 7 10 District Court does not have jurisdiction over a tax refund suit 11 unless the taxpayer has not only paid all assessments in full, 12 but has also filed a claim for a refund with the IRS. Thomas v. 13 United States, 755 F.2d 728, 729 (9th Cir. 1985); Yuen v. United 14 States, 825 F.2d 244, 245 (9th Cir. 1987). 15 Here, the allegations in the complaint and the documents 16 attached to the complaint support an inference that Plaintiff 17 filed a refund claim (Cmplt. p. 6), that his claim was 18 disallowed, and that he had two years to sue after August 31, 19 2007 (Cmplt. pp. 20). It may further be inferred that Plaintiff 20 paid the tax. (Cmplt. p. 13.) 21 Accordingly, it appears that Plaintiff has stated a claim 22 against the United States for a refund with respect to taxes paid 23 for tax year 2001. Although it is unclear whether his claim 24 extends to the tax years 2002 and 2004, the Court concludes that 25 Plaintiff has stated a claim at least with respect to tax year 26 2001, and thus service against the United States is appropriate 27 2 28 Section 1346(a)(1) provides that district courts shall have original jurisdiction of civil actions against the United States for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected. 7 1 as is further discussed below. 2 ///// 3 /////// 4 2. IRS Employees 5 Plaintiff has sued employees of the IRS.3 Generally, 6 sovereign immunity does not bar damage actions against federal 7 officials in their individual capacity for violation of an 8 individual’s constitutional rights. Bivens v. Six Unknown Nmed 9 Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). 10 However, the Ninth Circuit has not recognized a constitutional 11 violation from the collection of taxes. Wages v. Internal Revenue 12 Service, 915 F.2d 1230, 1235 (9th Cir. 1990) (holding that a suit 13 based on a complaint of allegedly fraudulent and intimidating 14 conduct of individual IRS employees was foreclosed by Congress’s 15 having provided the remedy of suing the government for a refund 16 of improperly collected taxes). Indeed, it has been held that 17 allegations of negligent misapplication of federal law and 18 regulations and wilful disregard of law and regulations do not 19 state a claim because the remedy provided by § 7433 for damages 20 for unauthorized collection is the exclusive remedy for relief. 21 Mayben v. Barnes, 290 F.Supp.2d 1169, 1173 (E.D.CA 2003). 22 Further, it is established that a Bivens claim cannot be 23 asserted against the United States or an agency thereof. F.D.I.C. 24 v. Meyer, 510 U.S. 471, 484-86 (1994); Cato v. United States, 70 25 F.3d 1103, 1110-11 (9th Cir. 1995). 26 27 28 3 Plaintiff sues Nancy Jones, Operations M anager; Jon Schwartz, Operations M anager; Kathleen M . W oekel, Department Manager; Virginia Araiza, employee and Appeals Officer; Rosalind C. Kochmanski, Field Director and Accounts Manager; Jeff Stetina, Director of Field Compliance Services; and Dorothy M. Baylis, Operations Manager. (Cmplt. pp. 2-3.) 8 1 Because there is no recognized constitutional claim against 2 federal employees or officers for a wrongful failure to refund 3 taxes, Plaintiff has not alleged sufficient facts to show a 4 waiver of sovereign immunity with respect to the named employees 5 or officials. Likewise, because one cannot assert a Bivens claim 6 against the United States or an agency thereof, Plaintiff has not 7 established a waiver of sovereign immunity with respect to the 8 United States or the Internal Revenue Service, an agency thereof. 9 The Court concludes that an opportunity to amend would be 10 futile because of the lack of a viable legal theory to support 11 the alleged claim against any defendant. 12 Accordingly, it will be recommended that any Bivens action 13 against the named employees, the United States, or the IRS be 14 dismissed without leave to amend. 15 16 E. Qualified Immunity of Officers The Court also concludes that there would also be qualified 17 immunity for any individual officers because any officers’ 18 conduct would not violate a clearly established statutory or 19 constitutional right which a reasonable person would know; this 20 would be the case even if the agents had violated IRS 21 administrative or statutory provisions. See Wages v. United 22 States, 915 F.2d 1230, 1235 (9th Cr. 1990); Mayben v. Barnes, 290 23 F.Supp.2d 1169, 1173; Short v. Richardson, 1995 WL 810023, *4-5 24 (E.D. WA, Nov. 21, 1995). 25 F. Amendment of the Complaint to Name the United as a Defendant 26 Title 26 U.S.C. § 7422(a) and (f) provide that a suit or 27 proceeding in court for recovery of any internal revenue tax 28 alleged to have been erroneously or illegally assessed or 9 1 collected is permitted, but it may only be maintained against the 2 United States and not against any officer or employee of the 3 United States. Section 7422(f)(2) provides in pertinent part: 4 5 6 7 8 If a suit or proceeding brought in a United States district court against an officer or employee of the United States (or former officer or employee) or his personal representative is improperly brought solely by virtue of paragraph (1), the court shall order, upon such terms as are just, that the pleadings be amended to substitute the United States as a party for such officer or employee as of the time such action commenced, upon proper service of process on the United States. 9 The Court concludes that pursuant to the statute, the complaint 10 must be amended to substitute the United States as a party. 11 Normally an amendment to a complaint must be accomplished by 12 filing an entirely new complaint that is complete in itself. 13 Local Rule 15-220. However, the Court may grant a plaintiff 14 approval to the contrary. Id. Further, a court has inherent power 15 to control its docket and the disposition of its cases with 16 economy of time and effort for both the court and the parties. 17 Landis v. North American Co., 299 U.S. 248, 254-255 (1936); 18 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). The Court 19 has broad discretion to interpret and apply its local rules. 20 Dulange v. Dutro Construction, Inc., 183 F.3d 916, 919 n. 2 (9th 21 Cir. 1999). 22 Here, the statute expressly directs the Court to order 23 amendment of the pleadings to effectuate substitution of the 24 correct party. Pursuant to the statute, the local rule, and the 25 Court’s inherent power to control its docket, it will be 26 recommended that the complaint BE DEEMED AMENDED to reflect 27 substitution of the United States as the Defendant in this 28 action. 10 1 II. Service of the Complaint 2 Because Plaintiff has stated a cognizable claim against 3 Defendant United States of America, it will be recommended that 4 service of the complaint on Defendant United States of America be 5 directed, including the sending of service documents to 6 Plaintiff, Plaintiff’s completing the service documents and 7 returning them to the Clerk of the Court, the Clerk’s sending the 8 completed service documents to the Marshal for service, the 9 Marshal’s service of the summons, complaint, and any related 10 documents on Defendant United States of America, and the 11 Marshal’s filing a return of service. 12 III. Recommendation 13 Accordingly, it IS RECOMMENDED that 14 1) Plaintiff’s claim pursuant to 42 U.S.C. § 1983 against 15 16 all defendants BE DISMISSED WITHOUT LEAVE TO AMEND; and 2) Plaintiff’s claim pursuant to Bivens v. Six Unknown Nmed 17 Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) 18 against the United States, the Internal Revenue Service, or any 19 IRS employees, including but not limited to Jon Schwartz, 20 Operations Manager; Kathleen M. Woekel, Department Manager; 21 Virginia Araiza, employee and Appeals Officer; Rosalind C. 22 Kochmanski, Field Director and Accounts Manager; Jeff Stetina, 23 Director of Field Compliance Services; and Dorothy M. Baylis, 24 Operations Manager, BE DISMISSED WITHOUT LEAVE TO AMEND; and 25 3) The complaint BE DEEMED AMENDED to reflect substitution 26 of the United States as the Defendant in this action upon proper 27 service of process upon the United States; and 28 4) Plaintiff’s complaint BE SERVED on Defendant United 11 1 2 3 4 States of America; and 5) Service be effected by Plaintiff, the Clerk, and the Marshal as follows: a) The Clerk of the Court shall send Plaintiff one USM- 5 285 form, one summons, a Notice of Submission of Documents form, 6 an instruction sheet, and a copy of the complaint filed on 7 February 20, 2009; 8 9 b) Within THIRTY (30) DAYS from the date of this order, Plaintiff shall complete the attached Notice of Submission of 10 Documents and submit the completed Notice to the Court with the 11 following documents: 12 1. One completed summons; 13 2. One completed USM-285 form for the Defendant 14 15 listed above; and 3. 16 17 18 19 Two copies of the endorsed complaint filed on February 20, 2009; c) Plaintiff need not attempt service on defendants and need not request waiver of service; and d) Upon receipt of the documents described above, the 20 Clerk of the Court SHALL FORWARD them to the United States 21 Marshal to serve the above-named defendant pursuant to Federal 22 Rule of Civil Procedure 4 without payment of costs; and 23 24 25 e) Upon receipt of the documents from the Clerk of the Court, the United States Marshal shall: 1) Serve process and a copy of this order upon the 26 defendant pursuant to Rule 4 of the Federal Rules of Civil 27 Procedure; and 28 2) Within ten days after service is effected, the 12 1 United States Marshal shall file the return of service for the 2 defendant, along with evidence of any attempts to secure a waiver 3 of service of process and of the costs subsequently incurred in 4 effecting service on said defendant. Said costs shall be 5 enumerated on the USM-285 form and shall include the costs 6 incurred by the Marshal's office for photocopying additional 7 copies of the summons and complaint and for preparing new USM-285 8 forms, if required. 9 Plaintiff’s failure to comply with this order will 10 result in a recommendation to dismiss this action for 11 failure to obey this Court’s order. Local Rule 11-110. 12 This report and recommendation is submitted to the United 13 States District Court Judge assigned to the case, pursuant to the 14 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 15 Local Rules of Practice for the United States District Court, 16 Eastern District of California. Within thirty (30) days after 17 being served with a copy, any party may file written objections 18 with the court and serve a copy on all parties. Such a document 19 should be captioned “Objections to Magistrate Judge’s Findings 20 and Recommendations.” Replies to the objections shall be served 21 and filed within ten (10) court days (plus three days if served 22 by mail) after service of the objections. The Court will then 23 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 24 (b)(1)(C). The parties are advised that failure to file 25 objections within the specified time may waive the right to 26 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 27 1153 (9th Cir. 1991). 28 Plaintiff is admonished not to attempt to file an amended 13 1 complaint as Plaintiff’s recourse is to object to these findings 2 and recommendations. Plaintiff is further admonished that this 3 Court will strike any amended complaint filed without the Court’s 4 specific grant of permission to file an amended complaint. 5 6 IT IS SO ORDERED. 7 Dated: icido3 April 14, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
