Opinion
CASE NO. 12-CV-2026 BEN (NLS)
09-17-2012
GUADALUPE OCHOA PEREZ, Plaintiff, v. IRS, Defendant.
ORDER:
(1) DISMISSING ACTION WITHOUT PREJUDICE
(2) DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS
(3) DENYING AS MOOT MOTION TO APPOINT COUNSEL
[Docket Nos. 2, 3]
On August 16, 2012, pro se Plaintiff Guadalupe Ochoa Perez filed a Complaint against the Internal Revenue Service ("IRS"). (Docket No. 1.) Plaintiff also filed a motion to proceed in forma pauperis (Docket-No. 2) and a motion to appoint counsel (Docket No. 3). The Court decides the matters on the papers submitted. For the reasons outlined below, the Court DISMISSES the action without prejudice and DENIES as moot Plaintiff's motion to proceed in forma pauperis and motion to appoint counsel.
BACKGROUND
The Complaint appears to allege that an IRS employee unlawfully refused to assist Plaintiff in preparing a tax form. The Complaint reads, in its entirety:
[illegible] of IRS San Diego employer new supervisor to assit [sic] filing form assisting in correcting administrative error by IRS. Refuse assit [sic] fill form to be present case tax court San Diego refuse to assit [sic] in filing for prior year 1988 = refile because error to pay for IRS for that year.(Compl. at 1.)
DISCUSSION
I. SUA SPONTE SCREENING AND DISMISSAL
A complaint filed by any person proceeding, or seeking to proceed, in forma pauperis under 28 U.S.C. § 1915(a) is subject to mandatory sua sponte review and dismissal if the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from suit. 28U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,1126-27 (9th Cir. 2000).
The legal sufficiency of a complaint is tested under Federal Rule of Civil Procedure 12(b)(6). Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Rule 12(b)(6), dismissal is appropriate if the complaint fails to state a facially plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). That is, the complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556. Dismissal is also appropriate when the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). The court must assume the truth of all factual allegations and construe them in the light most favorable to the plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Pro se litigants are not "excused from knowing the most basic pleading requirements." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000).
Here, Plaintiff does not cite any legal basis for the cause of action. Although Plaintiff alleges that an IRS employee unlawfully refused to assist Plaintiff in preparing a tax form, Plaintiff does not cite any law requiring IRS employees to assist members of the public in preparation of their tax forms, nor is the Court aware of any. Accordingly, the Complaint lacks a cognizable legal theory. The Complaint is, therefore, DISMISSED WITHOUT PREJUDICE.
II. MOTION TO PROCEED IN FORMA PA UPERIS AND MOTION TO APPOINT COUNSEL
Because Plaintiff's Complaint is dismissed, Plaintiff's motion to proceed in forma pauperis and motion to appoint counsel are DENIED as moot.
CONCLUSION
For the reasons stated above, the Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to file an amended complaint that corrects the deficiencies outlined above. Any such amended complaint must be filed no later than November 1, 2012. If Plaintiff chooses to file an amended complaint, Plaintiff is encouraged to write as legibly as possible.
The motion to proceed in forma pauperis and motion to appoint counsel are DENIED as moot. If Plaintiff wishes to renew the motion to proceed in forma pauperis or the motion to appoint counsel, Plaintiff must file a new motion to proceed in forma pauperis and motion to appoint counsel along with an amended complaint.
IT IS SO ORDERED.
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HON. ROGER T. BENITEZ
United States District Judge