Summary
confusing and unclear complaint which fails to state with particularity what actions performed by any particular defendant give rise to the plaintiff's various claims requires no response, and dismissal of complaint is appropriate
Summary of this case from White v. StateOpinion
No. 00-0286-CB-M.
January 30, 2001
ORDER
This matter is before the Court on the Government's "Motion To Dismiss." (Docs. 6 and 7).
I. Background A. Procedural History
On or about March 6, 2000, Plaintiff, proceeding pro se, filed suit against D. Waddell, Chief, Automated Collection Branch, in the Circuit Court of Wilcox County, Alabama, pursuant to the common and statutory law of the State of Alabama. See Compl. at ¶ 12. On April 5, 2000, this case was removed to this Court in accordance with 28 U.S.C. § 1442. (Doc. 1). On April 11, 2000, this Court issued an Order which was deemed to constitute a writ of certiorari, as contemplated by 28 U.S.C. § 1447 (b). (Doc. 2). On June 15, 2000, the Government filed "Defendant's Motion To Dismiss." (Docs. 6 and 7). On June 22, 2000, the Plaintiff filed its "Answer To Order For A Motion to Dismiss." (Doc. 10)
Although the captions in the Plaintiff's filings reference both himself and Donna Yvonne Finklea as Plaintiffs, the Plaintiffs initial Complaint and the Answer to Order for a Motion To Dismiss in this case specifies only Robert James Finklea, Sr., as the Plaintiff. The FEDERAL RULES OF CIVIL PROCEDURE specify that which the Plaintiff must do in order to join a party to an action. See FED. R. Civ. P. RULES 19-20. Because the Plaintiff has failed to comply with the proper methods to join another party and due to the fact that the Government opposes the joining of Donna Yvonne Finklea in this case, this Court finds that Donna Yvonne Finklea is not a proper party to this action and is not a Plaintiff in this case.
On June 16, 2000, the United States Government was substituted for Waddell pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 (b) and § 2671 et seq., as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988, Public Law 100-694 (as codified at 28 U.S.C. § 2678 (d)(1)). (Doc. 9).
Subsequently, Plaintiff was notified that he failed to properly effect service of process on the Defendant (D. Waddell) in Montgomery, Alabama, as "[a]lthough the [Internal Revenue] Service accepted the certified mailing, it did not accept service of process on behalf of the defendant and is not an authorized agent for the purpose of accepting service of process[,]" as Defendant Waddell "is not employed at the [IRS] . . . in Montgomery." (Doc. 4). On June 13, 2000, the Government filed a Notice of Substitution of United States For Defendant D. Waddell with a Certification of Scope of Employment, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 (b) and § 2671 et seq. as amended by 28 U.S.C. § 2679 (d)(1). (Doc. 5). The Government states that the Plaintiff bring suit for damages alleging that the Defendant committed some tort-like acts in connection with the efforts of the IRS to determine, assess, and collect the federal income tax liability of the Plaintiff and that Plaintiff brings suit exclusively under the laws of the State of Alabama. (Doc. 5 at ¶ 1).
In addition to reviewing the motion to dismiss pleadings, as a whole, the Court carefully reviewed the following in making a determination as to the motion to dismiss: Defendant's Motion to Dismiss and Memorandum In Support (Doc. 6 and 7); Plaintiffs "Answer To Order For A Motion To Dismiss" (Doc. 10); Plaintiffs "Motion To Court To Rule On Settlement Agreement And Release" (Doc. 11); Plaintiffs Affidavit (Doc. 12); Plaintiffs Release (Doc. 13); Defendant's Opposition to Plaintiffs Motion to Court To Rule on Settlement Agreement and Release (Doc. 14); Plaintiffs "Motion To Continue Quest For Court To Rule On Settlement Agreement and Release" (Doc. 15); Defendant's Opposition To Plaintiffs Motion To Continue Quest For Court To Rule On Settlement Agreement And Release (Doc. 16); and, Plaintiffs "Plaintiff Desire This Motion To Address Court In Order To Clear Questions Plus, Continue Request For Ruling In This Matter." (Doc. 17).
B. Factual History
Construing the Complaint liberally on behalf of this Plaintiff, proceeding pro se this Court can glean only the following from Plaintiffs pleadings, in order to assess whether the Complaint is a "clearly frivolous action against the United States of America." (Doc. 7).
Plaintiff contends that the Government and Ms. Waddell (an employee of the IRS): violated the common laws and statutes of the State of Alabama; conspired against the Plaintiff; committed fraud against the Plaintiff; wrongfully or negligently made false representations; and possibly collected a wrongful charge. In essence, the Government claims that Plaintiff bases this action "on some disputed payments made to the [IRS] . . . regarding his federal income tax liabilities" in that the Plaintiff claims a creditor of his and the Government "conspired against him," noting "misrepresentations and suppressions of material fact concerning the take over of Plaintiff [sic] personal bank account." (Doc. 7 at 2).
Specifically, Plaintiff claims he is a "constituent of Defendant collection Company and through this relationship has fell [sic] prey to the Defendant[,]" as:
On or about June 14, 1984, Plaintiff confronted a Thomasville, Alabama creditor, who over charged the Plaintiff on an installment loan contract. A vertical fight developed with the Creditor vowing to destroy the Plaintiff. After must [sic] investigation it's been provin [sic] that this Creditor conspired (for unlawful purposes) with D. Waddell to to [sic] ruined the Plaintiff financially.
Indeed, a reading of a letter sent to the President by Plaintiff reveals that the Plaintiff contends that his finances have been ruined by "D. Waddell, an Internal Revenue Service employee, who Conspired, with a White Man from Thomasville, Alabama, who vowed before me that, he was going to destroy me, because I confronted him about over Charging [sic] me on a Installment [sic] Loan [sic], that I had with his Company [sic]." (Letter to President Attached to Compl.).
Plaintiff adds that "[d]ue to the nature of the Defendant Job title [sic] these people believe that they are above the law." Id. at ¶ 7. Plaintiff contends that regarding the "aforesaid transactions," the Defendant's Collection Branch "represented that $20,600.00, which was collected from the Plaintiff [sic] personal fund were never [sic] receive [sic][,]" even though Plaintiff claims that he "provided live [sic] proof of these payments on June 03, 1999." Id. at ¶¶ 9-10. Plaintiff additionally argues that "Defendant . . . concealed from the Plaintiff all correspondence and would not committed [sic] or adopted [sic] the subject misrepresentations[,]" and that "[s]ince the violation and wrongdoing was [sic] self-concealing and the pertinent information was exclusively within the knowledge and possession of third parties, including the Defendant[;]" that "[t]he purposeful concealment of the wrong justifies tolling" the statute of limitations. Id. at 11.
Based on these facts Plaintiff provided, and alleging personal injury and damage from them, Plaintiffs counts include: 1) conspiracy-scheme; 2) fraud-suppression as "Defendant . . . suppressed material facts from the Plaintiff by and through its misrepresentations and suppression of material fact concerning the take over of Plaintiff [sic] personal bank accounts[;]" 3) negligence-wantonness, arguing that "Defendant . . . knowingly, willfully and/or wantonly suppressed from Plaintiff funds that were never credited" and made "negligent and/or wanton representations concerning these documents and financial transactions and negligently and/or wantonly suppressing material facts known to them[;]" 4) violations of Alabama Code, as Defendant . . . violated Ala. Code xx 5-9-3 . . . in collecting a "WRONGFUL CHARGE[;]" and, 5) "prays that this Court will certify this action as a Civil Action" for Plaintiff and his "immediately Family described herein, to-wit." See Compl. at ¶¶ 16-27. Finally, Plaintiff claims the action is brought solely pursuant to the common law and statutory law of the state of Alabama that no claim is made under or for any cause of action arising under the Constitution or laws of the United States of America — and that it is a civil action money damage case only against Defendant Collection Branch, brought only under RULE 23(B)(3) of the ALABAMA RULES OF CIVIL PROCEDURE.
II. Discussion A. Legal Standard For A Motion To Dismiss
In considering a defendant's motion to dismiss pursuant to RULE 12(b) of the FEDERAL RULES OF CIVIL PROCEDURE, this Court accepts the plaintiffs' factual allegations as true and construes the complaint liberally in the plaintiffs' favor. See Jackson v. Okaloosa County, 21 F.3d 1531, 1534 (llth Cir. 1994); Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir. 1990); and, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). As such, a motion to dismiss for failure to state a claim should not be granted "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."See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
In considering such a motion, the Court may not consider evidence outside the pleadings, and must accept the plaintiffs allegations as true. See Powell v. United States, 945 F.2d 374, 375 (11th Cir. 1991). On such a motion, this Court must also "presum[e] that general allegations embrace those specific facts that are necessary to support the claim."See Nat'l Wildlife Federation v. Lujan, 497 U.S. 871, 889 (1990). This Court must view the facts in a light most favorable to the Plaintiff, and there must be no set of facts, which if proved, would entitle him to relief. See Blackston v. State of Alabama, 30 F.3d 117, 120 (11th Cir. 1994); Duke v. Cleland, 5 F.3d 1399, 1401 (11th Cir. 1993); and, Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). However, conclusory allegations and unwarranted factual deductions are not accepted as true.See Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974). Notably, however, there are additional considerations when a Plaintiff proceeds pro se.
Because the Plaintiff brings this suit pro se, this Court must construe the pleading liberally. See Moses "Big Moe" Everett v. Brad Ragan, Inc., 2000 WL 360240, 2 (S.D. Ala. 2000). Moreover, the Complaint should be held to a less stringent standard than that submitted by an attorney and should be construed as alleging all fairly and reasonably inferred claims. See e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). However, even a pro se litigant must allege the essential elements of the claims for relief, and vague and conclusory allegations are insufficient to state a claim. See Tigner v. Internal Revenue Service, 2000 WL 641614, *1 (2000). Indeed, courts have consistently refused to supply essential elements of a claim for a pro se Plaintiff if these facts are not initially pleaded in the Complaint. See e.g., Harris v. Evans, 20 F.3d 1118 (11th Cir. 1994); and, Tigner, 2000 WL 641614, *1. With these guidelines in mind, this Court finds as follows.
B. Application
On June 15, 2000, the Government filed a Motion To Dismiss, arguing that: 1) "Plaintiff has failed to state a claim upon which relief may be granted because the United States has not waived sovereign immunity and Plaintiffs has failed to plead the required elements to make a [sic] actionable claim against the United States" so that "this Court lacks jurisdiction over the subject matter[;]" and, 2) that the Plaintiffs' Complaint does not comply with FED. R. Civ. P. RULE 8(e) requirements for a concise and direct pleading. (Doc. 6). The Government interprets Plaintiffs' claims as a claim that the IRS attempted to collect $20,600 from them, which had been paid prior to the demands for payment. Id. The Government contends that "[i]t is obvious from the face of the Complaint that the plaintiff is complaining about actions lawfully taken by an IRS employee in the course of her official duties[,]" adding that "[i]t is equally clear that the claims have no merit." Id.
1. Failure To State A Claim Lack of Subject Matter Jurisdiction
Plaintiffs suit is barred by the doctrine of sovereign immunity which bars suit against the Government except under the terms that it consents to suit. See United States v. Dalm, 494 U.S. 596,608 (1990); Lehman v. Nakshian, 453 U.S. 156, 160 (1981); United States v. Mitchell, 445 U.S. 535,538 (1980); and, Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242 (11th Cir. 1996). It is axiomatic that the United States, as a sovereign, may not be sued without its consent. See Stoecklin v. United States, 943 F.2d 42, 43 (11th Cir. 1991). When a lack of consent to suit by the Government is shown, dismissal of the claim for lack of subject matter jurisdiction is appropriate
Moreover, a plaintiff bears the burden of asserting specific provisions waiving the sovereign immunity of the United States. See Holoman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). Additionally, the terms of the consent define a federal court's jurisdiction, and "any waiver of sovereignty immunity must be explicit and will be strictly construed." See Raulerson v. United States, 786 F.2d 1090, 1091 (11th Cir. 1986). Any doubts as to a possible waiver of sovereign immunity of the Government must be resolved in favor of the government. See United States v. Dalm, 494 U.S. 596, 608 (1990). Here, the Plaintiffs have not shown, and this Court has not found, a statutory waiver of sovereign immunity for this claim. Thus, dismissal of the claim is warranted because this Court lacks subject matter jurisdiction due to the Plaintiffs' failure to state a claim upon which relief may be granted because the Government has not waived sovereign immunity. See FED. R. Civ. P. RULE 12(b)(1)..
The Court takes note that even if it did have jurisdiction over this claim, dismissal is proper because the Plaintiff failed to state a claim.
Plaintiffs do not cite any federal statutes or constitutional provisions under which the Government has waived sovereign immunity. Indeed, the Plaintiffs have failed to plead or establish any facts which would establish a waiver of sovereign immunity. Additionally, the specific and exclusive remedy for tort-like claims of injury or loss of property arising or resulting from the negligent or wrongful acts of government employees acting within the scope of their employment, are brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675 (a). Thus, as the Plaintiffs cannot establish a waiver of sovereign immunity, this Court lacks jurisdiction to hear this matter.
Pursuant to the FTCA, once the Attorney General or her designees certifies a federal employee was acting within the scope of her employment, the federal employee is then absolutely immune from suit and the injured party is remitted to remedies against the Government and the Government is substituted as the Defendant as to the tort claims. See 28 U.S.C. § 2679 (b)(2). Here, the Government was substituted for D. Waddell on June 13, 2000, pursuant to 28 C.F.R. § 15.3 accordingly.
However, of particular note to the present matter, claims "arising in respect of the assessment or collection of any tax" are excluded from the scope of the FTCA. See 28 U.S.C. § 2680 (c). This exclusion has been defined to include any allegedly tortuous activity remotely related to an IRS agents' official duties in collecting or assessing taxes. See Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995); National Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1246 n. 5 (10th Cir. 1989); and,Capozzoli v. Tracey, 663 F.2d 654 (5th Cir. 1981). Plaintiffs Complaint seems to allege wrongful charge as to the collection and assessment of taxes, in that Plaintiff claims D. Waddell provided him with incorrect information as to the amount he owed on his federal tax liabilities. See Compl. at ¶ 25. Accordingly, the Plaintiff would be barred from brining suit under the FTCA.
Further, to bring suit against the Government under the FTCA, the Plaintiffs must first file an administrative claim for damages with the relevant agency. See 28 U.S.C. § 2675 (a). A complaint which fails to allege that any administrative claim was filed first, should be dismissed. See e.g., McNeil v. United States, 508 U.S. 106 (1993). Here, Plaintiffs make no allegation in his Complaint that he made an administrative claim before filing suit and so the Plaintiffs, at this time, has failed to exhaust his administrative remedies prior to filing suit.
Thus, this Court finds that the Government has not waived sovereign immunity as to any of the counts/claims Plaintiffs allege in his Complaint and is immune from suit as to Plaintiffs' claims, as is D. Waddell. Additionally, the FTCA prohibits bringing tort actions as to the collection or assessment of taxes. Moreover, Plaintiffs' Complaint, in its present form, has failed to make factual or legal allegations that are sufficient to bring his claim within the parameters of any of the provisions permitting suit against the Government, with respect to the collection or assessment of taxes. For these reasons, dismissal is proper.
2. Failure To Comply With Fed.R.Civ.P. Rule 8(e)
Pursuant to RULE 8(e), pleadings must be concise and direct as "[e]ach averment of a pleading shall be simple, concise, and direct." A pleading which sets forth a claim for relief, generally, "shall contain . . . a short and plain statement of the grounds upon which the court's jurisdiction depends . . . a short and plain statement of the claim showing that the pleader is entitled to relief, and . . . a demand for judgment for the relief the pleader seeks." See FED. R. Civ. P. RULE 8 (a). In essence, RULE 8(a) requires only that the complaint provide "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." See Conley, 355 U.S. at 47. However, while Plaintiffs are proceeding pro se and a liberal pleading standard applies so that the standard of notice pleading under RULE 8 is fairly lenient in that a complaint is read in a light most favorable to Plaintiff, it must still state a claim upon which relief can be granted. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993). As Plaintiffs' Complaint now stands, it fails to meet this standard.
Specifically, the Plaintiffs have failed to file a pleading which is concise and direct as required by RULE 8(e). Plaintiffs' Complaint is confusing and unclear. Indeed, the Plaintiffs fail to state with particularity what actions performed by Waddell or the Government give rise to his various claims for relief, with the exception of alleging what seems to be "misrepresentations" made by them. However, the Plaintiffs do not provide any specific instances or context in which the alleged misrepresentations may have occurred, the tax year to which they relate, or how such alleged misrepresentations may have damaged him. In addition to this lack of concise and direct claims in his Complaint, his pleadings are also difficult to review. Plaintiffs' respective averments cannot be readily discerned out of their allegations, which are confusing to read and relate to many seemingly haphazard topics. As such, Plaintiffs have indeed failed to meet the requirements of RULE 8(e) and has instead filed pleadings which are full of unclear statements, making it very difficult for this Court to understand and/or follow any allegation or specific argument, and which fail to allege concise claims for this Court to address. Plaintiffs' failure to comply with RULE 8(e) has resulted in a claim upon which this Court cannot be expected to rule. As such, the Government should not be required to respond to Plaintiffs' Complaint, as there is not, at this time, a concise and direct pleading to which the Government could respond appropriately. For these reasons, dismissal is appropriate.
III. Conclusion
In light of this Order and the arguments found in "Defendant's Opposition to Plaintiffs Motion to Court To Rule on Settlement Agreement and Release" (Doc. 14) as well as the Defendant's Opposition To Plaintiffs Motion To Continue Quest For Court To Rule On Settlement Agreement And Release (Doc. 16), this Court finds and it is herebyORDERED that Plaintiffs "Motion To Court To Rule On Settlement Agreement And Release" (Doc. 11), Plaintiffs Release (Doc. 13), Plaintiffs "Motion To Continue Quest For Court To Rule On Settlement Agreement and Release" (Doc. 15), and, Plaintiffs "Plaintiff Desire This Motion To Address Court In Order To Clear Questions Plus, Continue Request For Ruling In This Matter" (Doc. 17), are due to be DENIED. Further, Plaintiffs Affidavit (Doc. 12) is NOTED for the record.
In light of the foregoing and after careful consideration of the arguments raised by both parties, this Court finds and it is herebyORDERED that the Defendant's Motion To Dismiss is due to be GRANTED and this matter is dismissed without prejudice. As such, the Plaintiff is provided with the opportunity to file an "Amended Complaint" which comports with the procedural requirements of RULE 8(e), on or before February 26, 2001, stating the grounds for his claim in concise, direct, and specific terms, so that this Court may have a clear understanding of the Plaintiffs intended cause of action.