Opinion
Civil Action No. 02-D-1833 (BNB)
May 14, 2003
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before me on the United States' Motion to Dismiss (the "Motion"), filed November 29, 2002. On December 10, 2002, 1 issued an Order wherein I stated that the plaintiff had to and including January 10, 2003, to respond to the Motion. The plaintiff did not file a response to the Motion.
I. STANDARD OF REVIEW
In ruling on a motion to dismiss, the court must accept the plaintiff's well-pleaded allegations as true and must construe all reasonable inferences in favor of the plaintiff. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986);Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). `The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."Scheuer v. Rhodes, 416 U.S. 232. 236 (1974). A claim should be dismissed only where, without a doubt, the claimant cannot prove facts to support the claim for relief Id. The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
The plaintiff is proceeding pro se. I must liberally construe the pleadings of a pro se plaintiff. Haines v. Kerner, 104 U.S. 519, 520-21 (1972). Nevertheless, the court cannot act as an advocate for a pro se litigant, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure.Hall v. Bellmon, 935 F.2d 1106. 1110 (10th Cir. 1991).
II. ANALYSIS
The plaintiff filed his Complaint on September 24, 2002. The defendant asserts, and the plaintiff does not dispute, that the Internal Revenue Service ("IRS") is not a suable entity. The defendant requests that the United States of America be substituted as the defendant in this case. I respectfully RECOMMEND that the defendants' request to substitute the United States of America as the sole defendant in place of the IRS and the Department of Treasury be GRANTED.
The defendant next asserts that the Complaint should be dismissed because it is barred by sovereign immunity. In support of this statement, the defendant states that "Plaintiff fails to cite any statute specifically waiving the United States' sovereign immunity, and makes only general allegations, most of which sound in tort." Motion, p. 3.
The Complaint alleges one claim for relief as follows:
First Claim for Relief and supporting factual Alligations [sic]
Freedom of information acts response dated March 21, 2002 sent by United States mail.
Also attached is the evidence shown the loss in partnership gross income due to your conspiracy, Fraud, Malfeasence [sic], harrassment [sic], Loss in bussiness [sic], Loss in income, discrimination, mental curelty [sic]. Illigal [sic] sale of United States savings bonds E, EE. Including the results Pending against Tim Sandoval taking over responsibilty [sic] of said bussiness [sic] for the use of illigal [sic] activitys [sic] involved by and through my bussiness [sic].
Complaint, second page.
Attached to the Complaint are several documents, including a copy of a request by the plaintiff to the IRS and the Department of the Treasury for information under the Freedom of Information Act. Also attached is a reply to the plaintiff from the Department of the Treasury informing the plaintiff that a portion of the requested information does not fall under the jurisdiction of the IRS and the remaining information is confidential. The plaintiff invokes jurisdiction of this Court by stating that "[j]urisdiction is noted by and for each and every state of the nation. Internal Revenue Service, Dept. of Treasury." Complaint, p. 1.
The Complaint is largely unintelligible. However, providing the Complaint a liberal construction, the first claim states at least in part, a claim for violation of the Freedom of Information Act ("FOIA"). Under 5 U.S.C. § 552(a)(3), an agency must make properly requested records available to any person. The district court has jurisdiction to order the agency to produce any improperly withheld records. 5 U.S.C. § 552(a)(4)(B).
Insofar as the plaintiff has attempted to state any other claim(s) for relief, the defendant can better define such claim(s) through discovery or through a motion for more definite statement.
The defendant states that to the extent the plaintiff seeks to force the IRS to provide him with the information he sought in his letter, "he fails to state a claim on which relief can be granted for the reasons stated in the IRS' response." Motion, p. 5. At this point in the litigation, however, it is unclear exactly what type of information the plaintiff is seeking under FOIA, and what type of information the plaintiff is entitled to under FOIA. The plaintiff is entitled to offer evidence to support this claim. I respectfully RECOMMEND that the Motion be DENIED insofar as it seeks dismissal of the Complaint as barred by sovereign immunity and for failure to state a claim upon which relief can be granted.
The defendant also seeks dismissal of the Complaint because it "fails to identify any assessment or collection action . . . that has been taken against plaintiff and it is unclear whether an actual `case or controversy' even exists. Motion, p. 4. The plaintiff has established a "case or controversy" under FOIA. I respectfully RECOMMEND that the Motion be DENIED insofar as it seeks dismissal of the Complaint for failure to demonstrate a case or controversy.
III. CONCLUSION
In summary, I respectfully
RECOMMEND that the defendants' request to substitute the United States of America as the sole defendant in place of the IRS and the Department of Treasury be GRANTED.
IT IS FURTHER RECOMMENDED that the United States' Motion to Dismiss be DENIED.
FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party's failure to serve and file specific, written objections waives de novo review of the recommendation by the district judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions.Makin v. Colorado Dept. of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996).