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assuming that IRS employees were sued in their official capacities only where there was "no indication on the face of the complaint" or from "the 'course of proceedings'" that employees had been sued in their individual capacities (quoting Moore v. Harriman, 272 F.3d 769, 773 (6th Cir. 2001))
Summary of this case from Bruce v. McCarthyOpinion
Case No. C2-01-579
February 22, 2002
MEMORANDUM ORDER
Pro se plaintiff James George filed suit contesting the validity of certain federal tax lien notices and notices of deficiency that he received from the Internal Revenue Service ("IRS"). Although he originally named several IRS employees, including Eric Schultz and Rebecca Chiaramida, as defendants in this action, the United States has now been substituted as the only proper defendant. This matter is currently before the Court on Defendant United States' motion to dismiss pursuant to Federal Rules of Civil Procedure 4(i), 12(b)(1) and 12 (b)(6) for failure to serve the United States, for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted. (Record at 6).
I. Background
On April 8, 1991, the IRS filed with the Fairfield County Recorder's Office a "Notice of Federal Tax Lien" concerning taxes owed by Plaintiff James George, and by Betty George, for the years 1986-1988. This lien, in the amount of $7,746.99, was released on August 25, 1995. (Ex. A to Mot. to Dismiss). On September 23, 1998, the IRS again filed with the Fairfield County Recorder's Office a "Notice of Federal Tax Lien" against James George. The total amount of this lien was $14,134.46. (Id.). On April 12, 1999, the IRS filed a "Notice of Federal Tax Lien" against The James Curtis George Betty Lou George Family Contract for $11,491.82. (Id.). The September 23, 1998 and April 12, 1999 notices were both signed by IRS Revenue Officer Eric Schultz, concerning taxes owed for 1990-1994. Both of these liens were released on September 1, 2000 after payment of the liability by levy. (11.). On May 4, 2001, Rebecca Chiaramida, a Field Director for IRS Compliance Services, sent Mr. George three Notices of Deficiency. She alleged that he still owed the IRS $1,384.00 for 1997, $1,549.00 for 1998, and $1,616.00 for 1999, plus applicable penalties. The notices set forth the procedure for contesting the determinations. (Exs. to Compl.). The IRS has not yet assessed these taxes or filed any liens related to these deficiencies.
Plaintiff James George filed suit in the Fairfield County Court of Common Pleas on May 18, 2001, contesting the validity of the actions taken by the IRS employees as described above. He apparently contends that all of the Notices of Federal Tax Liens filed by Defendant are invalid and void from their inception. Plaintiff requests that the Court require Defendant to show cause why these tax liens should not be canceled, issue an order discharging the debt, and launch a criminal investigation against Defendant concerning possible fraud, extortion, and RICO violations.
Defendant removed the case to this Court on June 15, 2001. Plaintiff objected to the removal and the Court construed his objections as a motion to remand. On January 7, 2002, this Court issued an Order denying Plaintiffs motion to remand the case to state court. The Court also gave Mr. George until January 31, 2002 to file a response to the pending motion to dismiss. Although Mr. George did submit a letter dated January 29, 2002, the subject matter of that letter is limited to certain objections he had to the Court's January 7, 2002 Memorandum Order concerning the motion to remand. Since his letter is completely unresponsive to the arguments raised in Defendant's motion to dismiss, the Court will treat that motion as unopposed.
Since Plaintiff apparently failed to serve Defendant with a copy of this letter, the Clerk's office forwarded a copy of the letter to Defendant's attorney.
II. Standard for Granting Motion to Dismiss
The purpose of a motion under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the complaint. This rule permits courts to dismiss meritless cases which would otherwise waste judicial resources and result in unnecessary discovery. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995 Murphy v. Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). Although the Court must liberally construe the complaint in favor of the party opposing the motion to dismiss, it will not accept conclusions of law or unwarranted inferences cast in the form of factual allegations. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987); Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405-06 (6th Cir. 1998). The Court will, however, indulge all reasonable inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072, 1076 n. 6 (6th Cir. 1972).
When determining the sufficiency of a complaint in the face of a motion to dismiss, a court will apply the principle that "a complaint should not be dismissed for failure to state a claim unless 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). See also Lewis, 135 F.3d at 405. Because a motion under Rule 12 (b)(6) is directed solely to the complaint itself, Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983), the focus is on whether the plaintiff is entitled to offer evidence to support the claims, rather than on whether the plaintiff will ultimately prevail.See Scheuer, 416 U.S. at 236; McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981).
A complaint need not set down in detail all the particularities of a plaintiffs claim against a defendant. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." The function of the complaint is to afford the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. See Conley, 355 U.S. at 47; Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir. 1982), cert. denied, 460 U.S. 1086 (1983); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). However, the complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). Bare assertions of legal conclusions are insufficient. See id.; Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). Nevertheless, the Court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim.
III. Discussion
Defendant moved to dismiss Plaintiffs complaint on several grounds. Mr. George failed to file a timely response. As noted earlier, even after the Court denied the motion to remand and gave Plaintiff additional time to file a memorandum in opposition to the motion to dismiss, Plaintiff failed to file an appropriate response that addressed any of the arguments raised in Defendant's motion to dismiss. Standing alone, Plaintiffs failure to respond is insufficient grounds upon which to dismiss the complaint in its entirety. See Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991). Furthermore, complaints filed by pro se litigants must be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nevertheless, after careful consideration of Plaintiffs complaint and Defendant's motion to dismiss, the Court finds that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Dismissal is proper on several grounds.
A. Improper Service
Federal Rule of Civil Procedure 4(j) requires that service of the summons and complaint be made upon defendants within 120 days from the filing of the complaint. If the plaintiff fails to execute proper service within the 120 day time limit, then the complaint must be dismissed without prejudice. The Federal Rules of Civil Procedure also provide that service upon the United States shall be effected:
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and
(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency.
Fed.R.Civ.P. 4(i)(1). Furthermore, "[s]ervice on an agency or corporation of the United States, or an officer or employee of the United States sued only in an official capacity, is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation." Fed.R.Civ.P. 4 (i)(2)(A).
There is no indication on the face of the complaint that Mr. George is suing IRS employees Eric Schultz or Rebecca Chiaramida in their individual capacities; therefore, the Court may generally assume that they were sued only in their official capacities. See Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1990). Even using the "course of proceedings" test recently established by the Sixth Circuit in Moore v. Harriman, 272 F.3d 769 (6th Cir. 2001), there is no indication that Mr. George asserted claims against them in their individual capacities. Suits against government officials acting in their official capacities are the equivalent of suits against the governmental entity itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Pursuant to Rule 4(i)(2)(A), a suit against IRS employees sued in their official capacities requires that service of the complaint and summons be effected as set forth in Federal Rule of Civil Procedure 4(i)(1). The plaintiff must also send copies to the named employees by registered or certified mail.
Mr. George apparently mailed copies of his complaint to Chiaramida and Schultz. It appears that he may have also mailed a copy of the complaint to the Special Procedures Branch of the IRS in Cincinnati, Ohio. However, it appears that he sent these copies not by registered or certified mail as required, but rather by regular United States mail. More importantly, it is undisputed that Mr. George failed to deliver copies of the complaint and summons to the local United States Attorney or the Attorney General of the United States. He therefore failed to effect proper service in the manner prescribed by Rule 4(i)(1) and his complaint must be dismissed.
B. Sovereign Immunity
Even if Mr. George had effected proper service, Defendant is entitled to dismissal of this action based on grounds of sovereign immunity. Unless the United States expressly waives its right to immunity, it is immune from suit. This immunity cannot be sidestepped simply by naming government employees as defendants. See Ecclesiastical Order of the Ism of Am, Inc. v. Chasm, 845 F.2d 113, 115 (6th Cir. 1988). The plaintiff has the burden of proving that the United States has consented to be sued, and that this Court therefore has subject matter jurisdiction. See Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir. 1993).
In this case, Plaintiff has pointed to no statute which indicates that the United States has waived its right to sovereign immunity in cases where a taxpayer is contesting the authority of the IRS to file certain federal tax liens or issue notices of deficiency, particularly where all prior liens have been released and no new liens have yet been filed. To the extent George's complaint may be construed as a claim for a refund from the Internal Revenue Service, a waiver of sovereign immunity under 28 U.S.C. § 1346 (a) may be invoked only by first complying with the statutory requirements for filing a claim for a refund. See United States v. Dalm, 494 U.S. 596, 609-10 (1990); Firsdon v. United States, 95 F.3d 444, 446 (6th Cir. 1996). Since Mr. George has failed to submit any evidence that he filed such a claim, this suit must be dismissed on grounds of sovereign immunity. See 26 U.S.C. § 7422 (a).
C. Lack of Cognizable Claim
Even if the United States had been properly served and had waived its right to sovereign immunity, dismissal is still appropriate because Mr. George has failed to state any kind of a cognizable claim. The Court notes at the outset that it is difficult to decipher the true nature of Mr. George's claim from the face of the complaint. Mr. George appears to challenge the authority of the IRS to file a lien against his property for delinquent taxes. He claims that the liens were void from their inception and should be canceled. The basis for this claim apparently stems from his mistaken belief that the United States Code, including the applicable tax laws, applies only to the District of Columbia, United States government employees and United States property. He appears to argue that since he does not live in the District of Columbia and is not a federal employee, federal tax law does not apply to him. He claims to be governed only by the Ohio Revised Code since he lives in Ohio. It is also his belief that the liens are void because the United States failed to take action against him within a state-created statute of limitations, failed to file the notice of tax liens with the Recorder of Deeds for the District of Columbia, and failed to properly certify the liens and notices of deficiency as required by the Uniform Federal Lien Registration Act. Mr. George also asks the Court to launch a criminal investigation into the actions of the IRS employees.
In support of its motion to dismiss, recognizing that Mr. George is proceeding pro se, the United States has approached these allegations from many different angles, attempting to cover all possible interpretations of Mr. George's claims and setting forth grounds for dismissal of each possible claim. These will be discussed in turn.
In the event Mr. George has attempted to stated a tort claim against the United States, he has failed to exhaust his administrative remedies as required by 28 U.S.C. § 2675 (a). That statute requires an individual to present his or her claim to the appropriate federal agency and receive a final determination prior to instituting suit against the United States. Exhaustion of administrative remedies is a jurisdictional prerequisite to filing suit under the Federal Tort Claims Act. See McNeil v. United States, 508 U.S. 106, 113 (1993). It is undisputed that Mr. George failed to present his claim to the IRS prior to filing suit.
To the extent Mr. George is seeking injunctive or declaratory relief in the form of an order canceling" the tax liens or preventing the Internal Revenue Service from assessing or collecting his federal taxes, his claims are barred by the Anti-Injunction Act, 26 U.S.C. § 7421, and the Declaratory Judgment Act, 28 U.S.C. § 2201. The Anti-Injunction Act expressly prohibits suits brought "for the purpose of restraining the assessment of collection of any tax." 26 U.S.C. § 7421 (a). Likewise, the Declaratory Judgment Act expressly excludes most controversies related to federal taxes from its scope. See 28 U.S.C. § 2201 (a).
The Court finds that none of the exceptions to this statute, as set forth in Enochs v. Williams Packing Navigation, 370 U.S. 1, 7 (1962), and South Carolina v. Regan, 465 U.S. 367, 381 (1984), applies in this case.
In the event Mr. George is seeking some sort of a mandamus order requiring the agency to withdraw the Notices of Deficiency, or requiring officials to launch a criminal investigation into the activities of IRS employees Rebecca Chiaramida and Eric Schultz, the Court finds that no such order is warranted. Mandamus orders should be issued only if the plaintiff has a clear right to the relief sought, the defendant has a clear non-discretionary duty to do the act in question, and the plaintiff has no other adequate remedy available. See 28 U.S.C. § 1361; Heckler v. Ringer, 466 U.S. 602, 616-17 (1984); In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. denied, 517 U.S. 1205 (1996);Willis v. Sullivan, 931 F.2d 390, 395 (6th Cir. 1991). In this case, Plaintiff has failed to show that any of these requirements has been met.
In summary, no matter how liberally Mr. George's complaint is construed, it appears that he can prove no set of facts in support of his claim that would entitle him to relief. In addition, he has failed to respond to any of the arguments advanced by the United States in support of its motion to dismiss. Even construing the complaint in the light most favorable to the plaintiff and accepting all well-pleaded material allegations as true, the Court concludes that dismissal of the complaint is proper because Mr. George failed to effect proper service, failed to establish subject matter jurisdiction, and failed to state a claim upon which relief can be granted.
IV. Conclusion
For all of the reasons stated above, Defendant's motion to dismiss (Record at 6) is GRANTED and Plaintiffs complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.