Opinion
Case No. 6:01-CV-171-ORL-19JGG
March 5, 2001
ORDER
This cause comes before the Court on the following matters:
(1) Plaintiff's Administrative Notice, Notice of Non-Acceptance of Removal, Notice of Default, Notice of Lack of Jurisdiction, and Demand that Removal be Revoked and Motion to Remand (Doc. No. 8, filed February 15, 2001);
(2) Defendant's Motion with Memorandum of Law in Support to Dismiss this Case (Doc. No. 10, filed February 23, 2001);
(3) Defendant's Motion for Relief from Case Management Reporting Requirements and for Stay of Discovery with Memorandum of Law in Support (Doc. No. 9, filed February 23, 2001)
BACKGROUND
The pro se Plaintiff, Scott E. Slayback, initially instituted this action in state court, pursuant to Florida Statute § 713.21, seeking the discharge of his tax debts and cancellation of the liens for those debts. The case was subsequently removed to federal court in accordance with the procedures set forth in 28 U.S.C. § 1446.
MOTION TO REMAND
Plaintiff's motion to remand this suit to state court is not well taken. The case was properly removed. Title 28, United States Code, section 1442(a)(1) expressly provides for the removal of actions such as the one brought by Plaintiff here. Section 1442(a)(1) provides as follows:
(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or collection of the revenue.28 U.S.C. § 1442(a)(1). An officer of the United States has been named in this case which involves the collection of revenue. See (Doc. No. 2) (referring repeatedly to the imposition of a "Notice of Federal Tax Lien Under Internal Revenue Laws" and disputing the validity of such "lien or debt"). Under these circumstances, section 1441(a)(1) applies and removal is proper. See also 28 U.S.C. § 1331; 28 U.S.C. § 1346.
MOTION TO DISMISS
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, when ruling on a motion to dismiss, the trial court is required to view the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232 (1974) Furthermore, courts are charged with liberally construing the complaints of pro se litigants who are held to less stringent standards for drafting pleadings than lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)
Here, the Complaint names Van E. O'Neal, an employee of the Internal Revenue Service (IRS), as the Defendant. However, a suit against an IRS employee in his official capacity is, in essence, a suit against the United States. See Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D.Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996). Therefore, the United States is the proper party defendant in this case, and the doctrine of sovereign immunity applies. Under this doctrine, the United States is immune from suit unless it expressly waives its immunity and consents to be sued.See 885 F. Supp. at 1542. Additionally, the Government's waiver of sovereign immunity must be "unequivocally expressed" to be effective.See United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)
In the instant case, the United States has not expressly waived its sovereign immunity or consented to be sued pursuant to Florida Statute § 713.21. Therefore, this Court lacks subject matter jurisdiction over this cause, and the cause must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
CONCLUSION
Based upon the foregoing, the Court RULES that:
(1) Plaintiff's Administrative Notice, Notice of Non-Acceptance of Removal, Notice of Default, Notice of Lack of Jurisdiction, and Demand that Removal be Revoked and Motion to Remand (Doc. No. 8) is DENIED.
(2) Defendant's Motion to Dismiss this Case (Doc. No. 10) is GRANTED.
(3) Defendant's Motion for Relief from Case Management Reporting Requirements and for Stay of Discovery (Doc. No. 9) is DENIED AS MOOT.
(4) The Plaintiff's Complaint is hereby DISMISSED WITH PREJUDICE.
(5) The Clerk of the Court shall CLOSE this case.