Opinion
4:23-CV-87-D
08-10-2023
TIMOTHY BEST, Plaintiff, v. DEPARTMENT OF THE TREASURY and INTERNAL REVENUE SERVICE, Defendants.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Plaintiff's application to proceed in forma pauperis, [DE-2], and for frivolity review of the complaint, [DE-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated sufficient evidence of inability to pay the required court costs but it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States. 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Corr, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . .'” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble. 429 U.S. 97, 106 (1976); Noble v. Barnett. 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. FACTUAL BACKGROUND
Plaintiff Timothy Best asserts the Department of the Treasury and the Internal Revenue Service violated his Constitutional rights to Due Process and Equal Protection by not promptly informing him of his tax debts for 2013-2022, not issuing him Government stimulus checks for 2020 and 2021, delaying in providing his 2020 and 2021 tax refunds and in requesting certain documents, failing to provide quality service, delaying assessment of penalties and interest to future years, and failing to promptly respond to his complaint or to bring the matter to finality. Compl. [DE-1] at 2-3, 5-6. Best seeks monetary damages ranging from $100,000 to $1,000,000 per unlawful act and $5,000,000 in punitive damages. Id. at 3.
III. DISCUSSION
Best's constitutional claims against the IRS and Treasury seeking monetary damages are foreclosed by the Supreme Court's decision in F.D.I.C. v. Meyer, in which the Court declined to imply a Bivens-type cause of action against a federal agency. 510 U.S. 471, 484-86 (1994). In Bivens, the Court held that an individual injured by a federal agent's alleged violation of the Fourth Amendment may bring an action for damages against the agent. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). In Meyer, a former employee brought an action against the Federal Savings and Loan Insurance Corporation whose representative allegedly discharged the employee without due process. 510 U.S. at 473-74. The Court rejected the claim and concluded that “[a]n extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself.” Id. at 486. Following Meyer, this court dismissed a constitutional claim against the IRS because “a Bivens action is not available against federal agencies such as the IRS.” White v. United States Internal Revenue Serv., No. 2:19-CV-9-FL, 2019 WL 2413697, at *2 (E.D. N.C. June 6, 2019) (citing Meyer, 510 U.S. at 484-86), aff'd. 785 Fed.Appx. 168 (4th Cir. 2019); see Vargas v. Internal Revenue Serv, No. 2:21-CV-02102-WBS-DBP, 2022 WL 3969616, at *2 (E.D. Cal. Aug. 31, 2022) (finding a claim for damages alleging violations of constitutional rights to due process and equal protection against the IRS was not cognizable); Knight v. Internal Revenue Serv. No. 1:20-CV-00514, 2020 WL 13555163, at *3 (S.D. W.Va. Sept. 23, 2020), adopted by 2022 WL 4350262, at *1 (S.D. W.Va. Sept, 19, 2022) (same); Cohen v. Internal Revenue Serv., No. CV 2:19-00764 (WJM), 2020 WL 4676464, at *2 (D.N.J. Aug. 12, 2020) (“A Bivens-type action under the Eighth Amendment for damages is not available to the plaintiff against a federal agency like the IRS.”).
Additionally, “the United States has not waived sovereign immunity in suits claiming constitutional torts, see Radin v. United States, 699 F.2d 681, 684-85 (4th Cir. 1983), and the bar of sovereign immunity cannot be avoided by naming agencies such as the Internal Revenue Service as a defendant, as federal agencies operate as the United States itself. Hawaii v. Gordon, 373 U.S. 57, 58 (1963).” McElrath v. Internal Revemie Serv, No. CV 6:23-272-BHH-KDW, 2023 WL 2226833, at *2 n.l (D.S.C. Feb. 9, 2023), adopted sub nom. McElrath v. Internal Revenue Serv & United States of Am., 2023 WL 2214879 (D.S.C. Feb. 24, 2023); Dimarzo v. CMS (Centers for Medicare), No. 5:20-CV-00100-M, 2020 WL 4043974, at *2 (E.D. N.C. July 17, 2020) (“Under the doctrine of sovereign immunity, federal agencies are immune from suit unless the government has waived immunity.”) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941); Blackmar v. Guerre, 342 U.S. 512, 514 (1952)); Bryant v. Env't Prot. Agency, No. 2:18-CV-1436-MBS-MGB, 2018 WL 5258806, at *5 (D.S.C. Oct. 2, 2018) (claim against IRS for monetary damages was subject to dismissal because federal agencies are entitled to sovereign immunity absent waiver), adopted by, 2018 WL 5253453 (D.S.C. Oct. 22, 2018), aff'd sub nom. Bryant v. U.S. Dep't of Educ., 764 Fed.Appx. 344 (4th Cir. 2019).
Finally, Best has failed state a claim under the Federal Tort Claims Act against the IRS because “the court lacks jurisdiction over a[n] FTCA claim against defendants other than the United States.” Carter v. Pellicane, No. 3:19-104-CMC-SVH, 2019 WL 8012206, at *3 (W.D. N.C. Nov. 6, 2019). Best has not named the United States as a defendant. See Benjamin v. United States, No. 2:22-CV-100, 2022 WL 18884650, at *6 (E.D. Va. Dec. 27, 2022) (“[T]he FTCA only waives sovereign immunity for suits brought against the United States, not federal agencies.”) (citations and internal quotation marks omitted), aff'd, No. 23-1215, 2023 WL 4797569 (4th Cir. July 27, 2023); Woods v. Cnty. of Wilson, No. 5T0-CT-3118-BO, 2012 WL 777152, at *3 (E.D. N.C. Mar. 8, 2012) (holding that an FTCA claim “must be brought against the United States of America”) (citation omitted); Graham v. Stansberry, No. 5:07-CT-3015-FL, 2008 WL 3910689, at *8 (E.D. N.C. Aug. 20, 2008) (“Even if plaintiff had alleged a claim pursuant to the FTCA, he would be unable to proceed on that claim because he has not named the proper party. The proper party for a suit brought under the FTCA is the United States of America.”). Amendment to name the United States would be futile because “any claim arising in respect of the assessment or collection of any tax” is excepted from the FTCA. See 28 U.S.C. § 2680(c); Knight, 2020 WL 13555163, at *3 (“[E]ven if Plaintiff had properly named the United States as a defendant in this action, because her claims are entirely based upon the alleged conduct of the IRS in assessing and collecting taxes from Plaintiff and then failing to issue her a refund, any such claims cannot be maintained against the United States under the FTCA.”). The Fourth Circuit has held that “this exception applies to any suit involving ‘activities that are even remotely related to the assessment or collection' of ‘a specific tax debt.'” Lewis v. United States, No. CV DKC 22-2566, 2023 WL 3304890, at *3 (D. Md. May 8, 2023) (quoting Perkins v. United States, 55 F.3d 910. 915 (4th Cir. 1995)). Best's complaint concerns the intentional and negligent collection of taxes, Compl. [DE-1] at 5, which is excepted from the FTCA. Accordingly, it is recommended that Plaintiff's complaint be dismissed.
III. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Plaintiff's application to proceed in forma pauperis be allowed and that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until August 24, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).