Opinion
CIV. NO. 1:19-cv-00090 LEK-KJM
03-12-2019
NOSHIR S. GOWADIA, FED. REG. #95518-022, Plaintiff, v. INTERNAL REVENUE SERVICE, FLORENCE POON, SUSAN MITSUYOSHI, DEBRA TSUHA, Defendants
DISMISSAL ORDER
Before the court is pro se Plaintiff Noshir S. Gowadia's civil rights Complaint seeking money damages under Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388 (1971). Gowadia is a former defense contractor who was convicted in this court of multiple counts for violations of the Arms Export Control and Espionage Acts, tax fraud, and money laundering. See United States v. Gowadia, No. 1:05-cr-00486 (D. Haw. 2005), aff'd 760 F.3d 989, 990 (9th Cir. 2014). Gowadia is now incarcerated at the United States Penitentiary in Florence, Colorado (USP Florence), and has paid the costs of this suit.
Gowadia initiated this action in the District Court for the District of Columbia, which transferred the suit to this court on February 21, 2019. Gowadia alleges that the Internal Revenue Service (IRS) and IRS agents Florence Poon, Susan Mitsuyoshi, and Debra Tsuha (Defendants) knowingly falsified information that led to his conviction for tax fraud. He seeks $5 million from the IRS and $3 million each from Poon, Mitsuyoshi, and Tsuha.
Gowadia initiated a substantially similar Bivens action in Gowadia v. IRS, Florence Poon, Susan Mitsuyoshi, Civ. No. 13-01991 (D.D.C. 2013). That action was dismissed on April 6, 2015, as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Gowadia did not appeal.
Because Gowadia cannot state a colorable claim for relief against the named Defendants regarding his claims, this action is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(a-b).
I. STATUTORY SCREENING
The court is required to screen Gowadia's claims against government officials pursuant to 28 U.S.C. § 1915A(a). Claims that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing § 1915A(b)). Section 1915 screening involves the same standard of review as that under Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). That is, 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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
Pro se litigants' pleadings must be liberally construed and all doubts should be resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The court must grant leave to amend if it appears the plaintiff can correct the defects in the complain. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). If a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
II. DISCUSSION
Gowadia may not seek damages against the IRS or its employees pursuant to Bivens. See Adams. v. Johnson, 355 F.3d 1179, 1184-85 (9th Cir. 2004). He is also barred from pursuing these claims in a civil action by Heck v. Humphrey, 512 U.S. 477 (1994), because success on his claims would necessarily imply that his convictions for tax fraud are invalid. A. Bivens Relief is Unavailable
Bivens provides a federal common law basis for individuals to sue federal government actors if they violate the individual's constitutional rights while acting under government authority. 403 U.S. at 396-97. The right to sue under Bivens is qualified, however, and is not absolute. Adams, 355 F.3d at 1183. "Bivens remedies are not available to compensate plaintiffs for all constitutional torts committed by federal officials." W. Ctr. for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000) (per curiam). A Bivens action against governmental officials cannot lie where there are "special factors counseling hesitation in the absence of affirmative action by Congress." Bivens, 403 U.S. at 396; see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55, 1860 (2017) (explaining that expanding Bivens relief beyond the three contexts already recognized by the Supreme Court is disfavored).
Bivens remedies have been recognized only in three contexts: (1) FBI agents handcuffing a man in his home without a warrant in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures; (2) a Congressman firing his female secretary in violation of the Fifth Amendment's Due Process Clause; and (3) prison officials failing to treat an inmate's asthma in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Ziglar, 137 S. Ct. at 1854-55, 1860.
In Adams, the Ninth Circuit Court of Appeals expressly held that, "[B]ecause the Internal Revenue Code gives taxpayers meaningful protections against government transgressions in tax assessment and collection, we hold that Bivens relief is unavailable for plaintiffs' suit against IRS auditors and officials." 355 F.3d at 1186. That is, in light of "the comprehensiveness of the Internal Revenue Code and its remedial provisions for the benefit of taxpayers, and the specific remedies available . . . pursuant to TEFRA, we hold that the taxpayer plaintiffs here have no right to Bivens relief for any allegedly unconstitutional actions of IRS officials engaged in tax assessment and collection. Stated another way, plaintiffs may not pursue a Bivens action with complaints about the IRS's audits, assessments, and collection of partnership taxes and the obligations of partners." Id. at 1188.
Referring to the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, §§ 402-406, 96 Stat. 324.
Gowadia cannot maintain a Bivens suit for damages against Defendants IRS or its agents Poon, Mitsuyoshi, and Tshuha and these claims are DISMISSED with prejudice for his failure to state a colorable claim for relief. B. Heck Bar
Even if Gowadia could bring a Bivens claim against Defendants, those claims are presently barred by the Heck doctrine. In Heck, a state prisoner sought damages based on the allegedly unlawful conduct of the officials he held responsible for his conviction. The Supreme Court held that:
to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.512 U.S. at 486-87. A "district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487. Heck's rationale applies equally to Bivens actions as to those brought under 42 U.S.C. § 1983. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996).
Gowadia's convictions for tax fraud have not been reversed, expunged, or otherwise called into question. Because Gowadia's claims here, if successful, would call into question his convictions for tax fraud, those claims are barred by Heck and are DISMISSED without prejudice.
III. CONCLUSION
The Complaint is DISMISSED for failure to state a colorable claim for damages under Bivens and as barred under Heck. Because amendment is clearly futile, and this dismissal is without leave to amend.
The Clerk is directed to terminate this action and enter judgment.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 12, 2019.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge