Opinion
C. A. 8:23-cv-04264-BHH-KFM
11-21-2023
Rashaad Thomas, Plaintiff, v. Department of Treasury, Internal Revenue Service, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action alleging violations of his constitutional rights (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on August 25, 2023 (doc. 1). By orders filed September 14, 2023, and October 17, 2023, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (docs. 9; 14). The plaintiff complied with the court's orders, and the case is now in proper form for judicial screening. Nevertheless, the plaintiff's complaint is subject to summary dismissal.
ALLEGATIONS
This is a civil action filed the plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at McCormick Correctional Institution (“McCormick”) (doc. 1). The plaintiff alleges that the defendants have violated the Cares Act, the Administrative Procedures Act, and the T ucker Act because they did not issue an economic impact payment (“EIP”) to the plaintiff (id. at 4, 5). For relief, the plaintiff seeks an order requiring the defendants to issue him the EIPs as well as money damages (id. at 6).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action seeking damages from the defendants. However, the plaintiff's complaint is subject to summary dismissal.
Bivens Claims
To the extent the plaintiff's complaint could be construed as being brought pursuant to Bivens, it is subject to dismissal. In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of federal constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlowv. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). To state a claim under Bivens, a plaintiff must plausibly allege two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301,310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 (“In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. T oday we hold that it does.”).
As noted, in Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a plaintiff's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the plaintiff in his own home without a warrant. Bivens, 403 U.S. at 389. Since then, the Supreme Court has only recognized Bivens claims in two additional contexts: (1) under the Fifth Amendment's Due Process Clause for gender discrimination when a Congressman fired his female administrative assistant (Davis v. Passman, 442 U.S. 228 (1979)); and (2) under the Eighth Amendment's Cruel and Unusual Punishment Clause against prison officials for failing to provide emergency medical care for an inmate's asthma (Carlson v. Green, 446 U.S. 14 (1980)). However, as recognized by the United States Supreme Court in Egbert v. Boule, during the last 42 years, the court has “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” 142 S.Ct. 1793, 1799-1800 (2022) (collecting cases). The Court in Egbert further noted that recognizing additional causes of action under Bivens is disfavored. Id. at 1803 (internal citation omitted). As recognized recently by the Fourth Circuit in a published opinion, although the Supreme Court has not overruled any of the Bivens cases, the Supreme Court has demonstrated not only regret over the Bivens cases, but also demonstrated hostility to any expansion of them. See Tate v. Harmon, 54 F.4th 839, 843-44 (4th Cir. 2022). Thus, the Supreme Court has imposed a highly restrictive analysis for Bivens cases by “(1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens remedies.” Id. Under Ziglar v. Abbasi, the Supreme Court framed the inquiry as a two step process: (1) first asking whether the case presents a new Bivens context and (2) if the claim arises in a new context, doing a special factors analysis to determine whether to extend Bivens to said context. Ziglar v. Abbasi, 582 U.S. 120, 135-38 (2017) (citation omitted). In Egbert, the Supreme Court decided that “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803.
Here, the plaintiff's claims - even presuming they did not involve a new Bivens context - are that the defendants violated federal statutes, not that his constitutional rights were violated (see doc. 1). Further, the defendants named in this action are not persons for purposes of Bivens. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that, under Bivens, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002 (noting that a Bivens action “does not lie against either agencies or officials in their official capacity” (emphasis omitted)), aff'd 540 U.S. 614 (2004). As such, the plaintiff's Bivens claim against these defendants, even if not considered a new Bivens context, is subject to dismissal.
EIP Claims
As noted, the plaintiff alleges violations of federal statutes because he has not been provided EIP payments, which were authorized pursuant to the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, 26 U.S.C. § 6428(a)(1); the Consolidated Appropriations Act of 2021 (“CAA”), 26 U.S.C. § 6428A(a)(1); and the American Rescue Plan Act (“ARPA”), 26 U.S.C. § 6428B(b). Specifically, the CARES Act created a $1,200 tax credit for eligible individuals, that was authorized to be distributed as an advance refund on 2020 taxes. 26 U.S.C. § 6428(a), (f). Qualified individuals would receive the rebate as an EIP, but no impact payment was allowed to be made after December 31, 2020. 26
U.S.C. § 6428(f)(3)(A). The CCA then authorized a second tax credit of $600, which could be paid as an EIP. 26 U.S.C. § 6428A(a), (f). Qualified individuals would receive the rebate as an EIP, but no impact payment was allowed to be made after January 15, 2021. 26 U.S.C. § 6428A(f)(3)(A)(ii). The ARPA authorized a third EIP in the amount of $1,400.00 to eligible individuals. 26 U.S.C. § 6428B(b). Qualified individuals would receive the rebate as an EIP, but no impact payment was allowed to be made after December 31, 2021. 26 U.S.C. § 6428B(g)(3). Initially, the Internal Revenue Service (“IRS”) took the position that incarcerated individuals were not eligible to receive the EIPs; however, a class action filed in the United States District Court for the Northern District of California successfully argued that the determination by the IRS violated the Administrative Procedures Act and obtained a permanent national injunction barring the IRS from withholding EIPs solely on the basis of an individual's incarcerated status. Scholl v. Mnuchin, 489 F.Supp.3d 1008 (N.D. Cal. 2020) (order granting class certification and entering preliminary injunction); Scholl v. Mnuchin, 494 F.Supp.3d 661,692 (N.D. Cal. 2020) (order granting permanent nationwide injunction). The class in Scholl was defined as any United States citizens or legal permanent residents who:
(a) are or were incarcerated (i.e., confined in a jail, prison, or other penal institution or correctional facility pursuant to their conviction of a criminal offense) in the United States, or have been held to have violated a condition of parole or probation imposed under federal or state law, at any time from March 27, 2020 to the present;
(b) filed a tax return in 2018 or 2019, or were exempt from a filing obligation because they earned an income below $12,000 (or $24,400 if filing jointly) in the respective tax year;
(c) were not claimed as a dependent on another person's tax return; and
(d) filed their taxes with a valid Social Security Number, and, if they claimed qualifying children or filed jointly with another person, those individuals also held a valid Social Security Number.
Excluded from the class are estates and trusts; defendants; the officers, directors, or employees of any defendant agency; and[ ] any judicial officer presiding over this action and his/her immediate family and judicial staff.Scholl, 489 F.Supp.3d at 1047. The permanent injunction entered in Scholl required that EIP denials based solely on an individual's incarcerated status be reconsidered. Scholl, 494 F.Supp.3d at 692-93. The court in Scholl, however, specifically took no position on whether specific class members were entitled to recover the ElPs. Scholl, 494 F.Supp.3d at 691; see Byers v. Rettig, C/A No. 1:22-cv-00126-MR, 2022 WL 3205184, at *3 (W.D. N.C. Aug. 8, 2022) (internal citation omitted).
Here, based on the allegations in the plaintiff's complaint, it appears that the plaintiff is a member of the Scholl class. The plaintiff has been incarcerated since 2018 and alleges that he requested ElPs, but none were paid to him due to his incarcerated status (doc. 1). See South Carolina Department of Corrections Incarcerated Inmate Search, https://public.doc.state.sc.us/scdc-public/ (enter the plaintiff's first and last name) (last visited November 21, 2023). For relief, the plaintiff seeks an order compelling the IRS to pay him the requested EIPs (along with other money damages) (doc. 1 at 6). As such, because the plaintiff is a member of the Scholl class, he cannot pursue individual relief in this action. See Byers, 2022 WL 3205184, at *3 (internal citation omitted).
Further, to the extent the plaintiff requests that this court compel the defendants to provide his EIPs, there is no private cause of action to seek such relief. See Byers, 2022 WL 3205184, at *4 (citing Bynoe v. Yellen, C/A No. 3:21-cv-00509-MJD-WGC, 2022 WL 1516592, at *5 (D. Nev. Jan. 5, 2022) (“[I]t does not appear that a private cause of action can be maintained under the legislation authorizing the disbursement of these funds. The laws do not indicate that there is a private cause of action for non-receipt of funds.”), Report and Recommendation adopted by 2022 WL 1014982 (D. Nev. Apr. 5, 2022); Phelps v. Mnuchin, C/A No. 3:21-CV-327-JD-MGG, 2021 WL 2138506, at *4 (N.D. Ind. May 26, 2021) (“there is no suggestion there is a private cause of action under the CARES Act for receipt of specific non-disbursed funds, and it is not this Court's function to raise up a cause of action where a statute has not created one”) (citation and internal quotation marks omitted)). Further, the funds the plaintiff requests be distributed in this action can no longer be distributed. See 26 U.S.C. § 6428(f)(3)(A) (noting a deadline to disburse CARES Act funds as December 31, 2020); 26 U.S.C. § 6428A(f)(3)(A)(i)-(ii) (noting a deadline to disburse CAA funds as January 15, 2021); 26 U.S.C. § 6428B(g)(3) (noting a deadline to disburse ARPA funds as December 31, 2021). As such, because these deadlines have now passed, the plaintiff cannot obtain the relief he requests; thus, this action is subject to summary dismissal. See e.g. Byers, 2022 WL 3205184 at *4 (internal citations omitted).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”).
The plaintiff is warned that if the United States District Judge assigned to this matter adopts this report and recommendation, the dismissal of this action for failure to state a claim could later be deemed a strike under the three-strikes rule. See Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023).
The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).