Opinion
Case No. 04-C-1228.
June 1, 2005
DECISION AND ORDER
On December 21, 2004, plaintiff William Stephenson filed apro se complaint against the defendants claiming that they threatened him and made statements against him. The plaintiff filed a petition to proceed in forma pauperis and on February 10, 2005, the plaintiff filed a motion for a temporary injunction. (Docket #3). These matters will be addressed herein.
At the outset, the court notes that, although the plaintiff had not yet been granted leave to proceed in forma pauperis, the defendants filed a motion to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(5), 12(b)(6) and 12(b)91) on the grounds that: 1) the plaintiff failed to effect proper service within 120 days; 2) the plaintiff cannot seek a refund of other people's taxes; 3) the court lacks subject matter jurisdiction over any claim against the Internal Revenue Service (IRS) and the individual defendants in their individual capacities, and 4) the plaintiff's Bivens action against the individual defendants in their individual capacities fails to state a claim upon which relief can be granted. Since the court had not yet determined whether or not the plaintiff could proceed in forma pauperis, the defendants' motion to dismiss is premature. Accordingly, the defendants' motion to dismiss will be denied without prejudice (Docket #4).
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Addressing the plaintiff's request to proceed without paying the filing fee, the federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). To that end, § 1915(a) allows an indigent party to commence an action in federal court without having to pay costs and fees. Access is not unlimited, however. Congress recognized that some nonpaying litigants would try to abuse the privilege. Accordingly, it authorized the courts to dismiss a claim filed in forma pauperis "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(e)(2).
The plaintiff has submitted an affidavit of indigence indicating that he receives social security benefits and that he is unable to pay the costs of commencing this action. From this the court concludes that the plaintiff meets the poverty requirements of 28 U.S.C. § 1915(a).
The other question to be addressed is whether the complaint is frivolous. A complaint is frivolous if it has no arguable basis in law or fact, or if the petitioner is unable to make any rational argument in law or fact that would entitle him to relief. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. The court has the authority to dismiss any claim based on an indisputably meritless legal theory and any claim whose factual contentions are clearly baseless.
The plaintiff maintains that on February 24, 2003, he filed a tax return for his son and his daughter-in-law, using Internal Revenue Service (IRS) Form 1040. He states that he has filed a "Form 2848 Power of Attorney and Declaration of Representative" with the original return. (Complaint at 5). Sometime beginning in April 2003, he made inquiries to the IRS as to where the refund was. He was asked to submit supporting documents, which he did. According to the plaintiff, despite sending out approximately 22 copies of the completed return, he made no progress with the agency. He spoke with several people at the IRS, but no one was able to help him. Instead he states that he encountered conflicting information, claims of errors on his part and false promises. Some of the people threatened the plaintiff and made statements against him. As a result, the plaintiff claims that he suffered "mental, physical and stressful harm . . . and monetary loss." Id. at 7. He seeks the "correct refund for the year 2002," in addition to damages and other relief. Id. at 8.
Federal courts are courts of limited jurisdiction. Under the Federal Tort Claims Act, the federal courts have jurisdiction in civil actions on claims against the United States for money damages for injury or loss of property caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his or her employment. 28 U.S.C. § 1346(b)(1). The circumstances must be such that the United States, if a private person, would be liable under the law of the place where the act or omission occurred. Id. It appears that the plaintiff has stated an arguable tort claim. He asserts that threats were made against him which he maintains caused him to suffer mental and physical harm and monetary losses. Threats may give rise to an action in tort where such language causes a mental or emotional disturbance in the victim. 74 Am. Jur. 2d Torts § 29 (2004).
In this case, the plaintiff states, without naming anyone, that "threats were made to me." (Complaint at 5). The plaintiff further states that defendant Mary Jo Peterman "began making threats against me" when he brought her alleged errors to her attention. Id. at 6-7. Finally, the plaintiff asserts that three IRS employees (the complaint names four individual defendants) made "threats" against him, causing him mental, physical and financial harm. Id. at 7.
Construing the complaint in the light most favorable to the plaintiff as this court must at this juncture, the plaintiff appears to have an arguable claim against defendant Peterman. However, his complaint states no cognizable claim against the other three individual defendants, Chris Pirnie, Melvin Coupe and Kelvin Johnson. The complaint does not assert that these defendants threatened the plaintiff. Rather, the plaintiff maintains only that defendants Pirnie and Coupe failed to help him. Id. at 6-7. The complaint makes no specific mention of defendant Johnson. Thus, the plaintiff has failed to state a claim against defendants Pirnie, Coupe and Johnson. Consequently, defendants Pirnie, Coupe and Johnson will be dismissed from this action.
The body of the complaint names, without elaboration, Cindy Pittman, an IRS employee in Kansas City. However, the plaintiff did not include Pittman in the caption of either the complaint or his petition for leave to proceed in forma pauperis.
The plaintiff's claim for a refund on his son's 2002 income taxes is also subject to dismissal. A taxpayer must file a claim for a refund with the Secretary of the Treasury before bringing a civil action for that refund. 26 U.S.C. § 7422(a); Omnibus Financial Corp. v. United States, 566 F.2d 1097, 1101 (9th Cir. 1977). The complaint is devoid of any indication the plaintiff has filed such a claim for refund. In addition, a suit claiming a refund may be maintained only against the United States, not against any officer or employee. 26 U.S.C. § 7422(f); Omnibus Financial Corp., 566 F.2d at 1101.
Although the plaintiff states that he has signed IRS Form 2848, Power of Attorney and Declaration of Representative, on behalf of his son and daughter-in-law, the form states that "it will not be honored for any purpose other than representation before the IRS." (Form 2848, Power of Attorney and Declaration of Representative at 1). The authority of the representative "does not include the power to receive refund checks . . ." Id.
Thus, the plaintiff does not have standing to sue for a refund that would belong not to him, but to his son and daughter-in-law. "[A] party `generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Kowalski v. Tesmer, 125 S. Ct. 564, 567 (2004) (quoting Warth v. Sedlin, 422 U.S. 490, 499). There is an exception to this rule when the party seeking third-party standing makes two additional showings: (1) that the party asserting the right of another has a "close" relationship with the person who possesses the right; and (2) that there is a "hindrance" to the possessor's ability to protect his own interests. Kowalski, 125 S. Ct. at 567.
As father and father-in-law to the taxpayers seeking a refund, the plaintiff arguably has a "close" relationship with those who possess the right, if any, to the refund. In addition, he has power of attorney. (Complaint at 5). However, there is no indication that the plaintiff's son and daughter-in-law face any "hindrance" which prevents them from protecting their own interest. Because he has not satisfied both Kowalski prongs, the plaintiff does not have third-party standing. Thus, his claim which seeks a refund from the defendant IRS Kansas City Service Center must be dismissed.
MOTION FOR TEMPORARY INJUNCTION
The plaintiff has also filed a motion for a temporary restraining order requesting that the court temporarily enjoin "any further proceedings by the defendants until the principal matter is resolved." (Plaintiff's' Motion for a Temporary Injunction at 1). He is in effect seeking to restrain the assessment or collection of taxes.
Section 7421(a) of Title 28 United States Code, known as the Anti-Injunction Act, provides in relevant part that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. The prohibition set forth in § 7421 (a) can only be circumvented: 1) where it is shown that the collection of taxes would cause irreparable injury and there is no adequate remedy at law; and 2) where it is found, under the most liberal view of the law and the facts, that the government has no chance of ultimately prevailing in the case. See Enech v. Williams Packing and Navigation Co., 370 U.S. 1, 5 (1962). The burden is on the person seeking the injunction to prove that these circumstances exist.
Although there are statutory exceptions to the prohibition of § 7421(a), none of them are applicable in this case.
The plaintiff has not shown that he lacks an adequate remedy at law. Nor has he presented any facts to indicate that the government has no chance of ultimately prevailing in this action. Therefore, his motion for a temporary injunction will be denied.
In summary, this court finds that the plaintiff has shown that he is indigent under 28 U.S.C. § 1915 and that this court has jurisdiction over his arguable tort claim under 28 U.S.C. § 1346(b) against defendant Peterman. Accordingly, based on the foregoing, the plaintiff's request to proceed in forma pauperis on this claim will be granted.
ORDER
NOW, THEREFORE, IT IS ORDERED that the plaintiff's request to proceed in forma pauperis be and hereby is granted. IT IS ALSO ORDERED that defendants Chris Pirnie, Melvin Coupe, Kelvin Johnson and the IRS Kansas City Service Center be and hereby are dismissed.
IT IS ALSO ORDERED that the plaintiff's motion for a temporary restraining order (Docket #3) be and hereby is denied. IT IS FURTHER ORDERED that the defendants' motion to dismiss (Docket #4) be and hereby is denied without prejudice.