Opinion
No. CIV.S-00-0770 WBS DAD PS
August 21, 2001
ORDER AND FINDINGS AND RECOMMENDATIONS
This action was referred to the undersigned pursuant to Local Rule 72-302(c)(21) and is before the court on the following motions: (1) the motion to dismiss, or in the alternative, for summary judgment filed by defendants United States Marshals Service and United States Marshal Jerry J. Enomoto ("U.S. Marshals Service defendants"); (2) the motion to dismiss filed by defendants United States, Internal Revenue Service ("IRS"), Department of Justice attorneys Jeffrey Meyer and Joanne Duane, IRS Commissioner Charles Rossotti, IRS District Director Martha Sullivan, and IRS employees K. Jones and P.L. Cunningham ("IRS defendants"); (3) the motion to dismiss, or in the alternative, for a more definite statement filed by defendants Nevada County and Sheriff Keith Royal ("County defendants"); (4) plaintiff's motion to strike the motion filed by the U.S. Marshals Service defendants; (5) plaintiff's motion to strike the motion filed by the IRS defendants; and (6) plaintiff's motion to strike the certification of the United States Attorney General.
At the hearing on the motions plaintiff appeared pro se. Assistant United States Attorney Yashinori Himel appeared on behalf of the U.S. Marshal Service defendants. G. Patrick Jennings, Trial Attorney, Tax Division of the U.S. Department of Justice appeared on behalf of the IRS defendants. Assistant County Counsel Harold DeGraw appeared on behalf of the County defendants.
Following the hearing on these motions plaintiff filed a motion to compel compliance with his "Request for Disclosure Number One." The hearing on that motion was vacated pending the issuance of findings and recommendations on the potentially case dispositive motions pending before the court.
For the reasons stated below, the undersigned recommends that plaintiff's motions to strike be denied, defendants' motions to dismiss be granted and plaintiff's complaint be dismissed with prejudice.
BACKGROUND
Plaintiff Floyd Wright's pro se complaint alleges basically that the defendants abused their authority in removing and evicting him from his home in violation of his right to due process.
Although Mr. Wright argues otherwise, his claims are directly related to an earlier civil action brought in this court which was decided adversely to him. See United States v. Floyd A. Wright, et al., No. Civ.S-94-1183 EJG GGH. In that earlier action the United States reduced outstanding federal tax assessments against Mr. Wright for tax years 1973-75 and 1985-89 to judgment. Those tax liens were foreclosed upon against Mr. Wright's residence located on Yukon Way in Nevada City, California. Specifically, by orders filed October 25, 1994, May 16, 1995 and November 6, 1995, United States District Judge Edward J. Garcia granted summary judgment in favor of the United States on all of its claims. Judgment was entered in favor of the United States on November 6, 1995. Plaintiff appealed and on June 14, 1996 the Ninth Circuit Court of Appeals affirmed the judgment, stating that the district court had "properly rejected Wright's frivolous contentions" including the claim that there was no statutory authority making him liable for income taxes. (Case No. Civ.S-94-1183 EJG GGH, Doc. No. 155.) On November 4, 1996, the Court of Appeals denied Mr. Wright's petition for rehearing. On April 21, 1997, the United States Supreme Court denied his petition for writ of certiorari.
Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 26 645 F.2d 699 (9th Cir. 1981).
Thereafter, on October 29, 1998, the district court entered a Judgment of Foreclosure and Decree of Sale with respect to Mr. Wright's residence in Nevada City, California which included the order that he vacate the property within thirty days. Mr. Wright filed several motions with the court seeking relief from that order, all of which were denied by order of the court on December 29, 1998. By April 15, 1999 plaintiff had not vacated the property despite the court's order and on that date United States Deputy Marshals and Nevada County Deputy Sheriffs went to the property with a moving company and moved plaintiff and his wife out of the residence. A public sale of the property was finally conducted by the United States Marshal on July 15, 1999, with the property being sold to the highest bidder. On August 20, 1999, the district court issued an order confirming the July 15, 1999 foreclosure sale and directed the United States Marshal regarding the distribution of the sales proceeds.
On July 19, 1999 the Ninth Circuit Court of Appeals dismissed Mr. Wright's appeal from the district court's October 29, 1998 Judgment of Foreclosure and Decree of Sale.
On April 14, 2000, Mr. Wright, proceeding pro se, filed his complaint in the instant action. Therein he alleged that the defendants unlawfully deprived him of his right to peacefully inhabit his home. Specifically, to the extent the undersigned can decipher the complaint, plaintiff apparently alleges that: (1) the IRS lacked the authority to issue tax assessments, notices and demands for payment and liens and that therefore the public sale of his property was without authority; (2) that the government fraudulently obtained the judgment in Case No. Civ.S-94-1183 EJG GGH through the introduction of "bogus" evidence constituting both a fraud upon the court and an abuse of power by the defendants; (3) the government's claim against the property was extinguished and (4) the eviction of plaintiff was carried out arbitrarily and capriciously by the defendants in violation of plaintiff's right to due process.
In their various motions defendants have moved to dismiss plaintiff's complaint on numerous grounds. Among those grounds advanced, defendants contend that the court lacks subject matter jurisdiction over plaintiff's action. They also assert that plaintiff has failed to state a cognizable claim and that the court lacks personal jurisdiction over many of the named defendants due to plaintiff's failure to properly serve them. With respect to plaintiff's failure to state a cognizable claim, defendants assert that plaintiff's action is barred by federal statutory provisions as well as under the doctrines of res judicata and collateral estoppel. Finally, several individual defendants argue that they are entitled to immunity.
The individual defendants have also sought dismissal pursuant to Rule 12(b)(2) and (5) on the ground that they have not been properly served with process and that the court therefore lacks personal jurisdiction over them. While it appears that the defendants' position in this regard is well-taken, it is unnecessary to reach this issue. Lack of personal jurisdiction and insufficiency of service of process may be waived and the same defendants have moved to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) and advanced numerous arguments in support of those aspects of their motions. The court therefore has the authority to address the Rule 12(b)(1) and 12(b)(6) motions in the interest of efficiency. See Wages v. United States, 915 F.2d 1230, 1234-35 (9th Cir. 1990).
Below, the undersigned will address the defendants' motions to dismiss and thereafter will discuss the remaining motions pending before the court.
MOTIONS TO DISMISS
LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) allows a party by motion to raise the defense that the court lacks "jurisdiction over the subject matter" of a claim. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a `speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. Electronics, § 594 F.2d 730, 733 (9th Cir. 1979) (citations omitted). In the latter instance, no presumption of truthfulness attaches to plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citations omitted). The burden of proof on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thornhill Publ'g Co., 594 F.2d at 733.
On a motion to dismiss brought pursuant to Rule 12(b)(6) a complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). Furthermore, the court must construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In a case where the plaintiff is pro se, the court has an obligation to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)
Finally, under some circumstances it is appropriate for a court to consider outside material in resolving a motion to dismiss. See In re Stac Electronics Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996) (documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in a ruling on a Rule 12(b)(6) motion to dismiss); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) (matters judicially noticeable are proper grounds for consideration in a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990) (documents attached to the complaint are considered a part thereof and may be addressed in resolving a motion to dismiss); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (id.)
Because many of the arguments advanced by the defendants address the exercise of federal court jurisdiction over this action, the undersigned will first address the defendants' motions brought pursuant to Rule 12(b)(1). ANALYSIS
Because the undersigned need consider only those matters subject to judicial notice in ruling on the pending motions to dismiss, it is unnecessary to address the U.S. Marshals Service defendants' alternative motion for summary judgment.
I. Lack of Jurisdiction
Plaintiff's complaint seeks damages against the United States Marshals Service and the IRS. Damages actions against such agencies are suits against the sovereign. Land v. Dollar, 330 U.S. 731, 738 (1947); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (citing South Delta Water Agency v. U.S. Department of the Interior, 767 F.2d 531, 536 (9th Cir. 1985)). No court has jurisdiction to award relief against the United States unless such relief is expressly authorized by statute. United States v. King, 395 U.S. 1, 4 (1969); United States v. Sherwood, 312 U.S. 584, 586-87 (1941); Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995). A plaintiff bringing such an action against the United States must identify an express waiver of sovereign immunity. Lonsdale v. United States, 919 F.2d 1440, 1444 (10th Cir. 1990). Absent a waiver of sovereign immunity the action must be dismissed for lack of subject matter jurisdiction. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985)Plaintiff has failed to identify a waiver of sovereign immunity authorizing this action against the United States. The Federal Tort Claims Act does not authorize a constitutional tort claim such as this one. FDIC v. Meyer, 510 U.S. 471, 478 (1994); Cato v. United States, 70 F.3d at 1111. Moreover, the Federal Tort Claims Act contains an exception to its waiver of sovereign immunity for any claim arising in respect to the assessment or collection of any taxes. 28 U.S.C. § 2680(c);Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975)
In opposition to the defendants' motions to dismiss plaintiff relies on 26 U.S.C. § 7421 and 7433 as the basis for his claim of a waiver of sovereign immunity. The first provision is the Anti-Injunction Act which narrowly limits actions to enjoin assessment and collection of taxes by the IRS. Elias v. Connett, 908 F.2d 521, 523 (9th Cir. 1990). The statute does not authorize an action for damages such as this one. Section 7433, also relied upon by plaintiff, authorizes a civil action against the United States where any officer or employee of the IRS recklessly or intentionally or by reason of negligence "disregards any provision of this title, or any regulation promulgated under this title". Section 7433's limited waiver of sovereign immunity must be read narrowly.Allied/Royal Parking L.P. v. United States, 166 F.3d 1000, 1003 (9th Cir. 1999). In this action plaintiff alleges a constitutional due process violation with respect to his eviction from his property following the Judgment of Foreclosure. Thus, § 7433 does not authorize this damages action.
Finally, under Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971), an action for damages based upon a constitutional tort claim is authorized only against a federal officer in his or her individual capacity. Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) The United States, its agencies and employees acting in their official capacity are protected from such suits by sovereign immunity.Cato v. United States, 70 F.3d at 1109.
In his Opposition to the pending motions plaintiff confirms that he is proceeding against the persons named as defendants only in their individual capacity.
Because plaintiff cannot identify an express waiver of sovereign immunity that allows for this action, his claims against the United States, the U.S. Marshals Service and the IRS should be dismissed for lack of subject matter jurisdiction.
II. The Claim Against the Individual Defendants Are Barred
Each of the individual defendants move to dismiss on the grounds that they are entitled to immunity from suit and/or that plaintiff's action against them in connection with the collection of taxes is specifically prohibited by statute. In this regard, U.S. Marshal Enomoto argues that: (1) he was acting within the scope of his duties and is therefore immune from suit under 28 U.S.C. 2679(b)(1); (2) he cannot be held liable under a respondeat superior theory for the allegedly unconstitutional acts of his subordinates; (3) he is entitled to absolute immunity for carrying out the court's order in United States v. Wright; and (4) he is entitled to qualified immunity under these circumstances. IRS defendants Meyer and Duane argue that they are entitled to absolute immunity as well. Finally, all of the individual IRS defendants contend that this Bivens action against them arising from tax collection efforts is barred and that they are entitled to qualified immunity from suit under these circumstances. Again, the arguments in support of the defendants' motions are persuasive.
A. Absolute Immunity
The court's records reflect that on October 29, 1998, in the case ofUnited States v. Floyd A. Wright, et al., No. Civ.S-94-1183 EJG GGH, the court entered a Judgment of Foreclosure and Decree of Sale ordering that the tax liens arising pursuant to 26 U.S.C. § 6321 for Floyd Wright's unpaid assessed federal income tax for the years 1973-75 and 1985-89 be foreclosed upon the real property in question. The Decree of Sale specifically provided that:
7. All persons occupying the realty shall permanently leave and vacate the realty within 30 days of the date this order is filed or the date on which a copy of it is delivered to them, whichever is later, each taking with them their personal property (but leaving all improvements, buildings, mobile home units, fixtures, and appurtenances to the realty). If any person occupying the realty fails or refuses to leave and vacate the realty by the time specified in this order, the U.S. Marshal, his delegate, or his representative and any law enforcement deputies as may be necessary are authorized and directed to take all actions that are reasonably necessary to bring about the ejectment of those persons. If any person fails or refuses to remove his or her personal property from the realty by the time specified herein, the property remaining on the realty thereafter is deemed forfeited and abandoned, and the U.S. Marshal, his delegate, or his representative and his deputies are authorized to remove it and dispose of it in any manner the U.S. Marshal, his delegate, or his representative sees fit, including sale, in which case the proceeds of the sale are to be applied first to the expenses of sale, and then to the tax liabilities at issue herein.
(United States v. Floyd A. Wright. et al., No. Civ.S-94-1183 EJG GGH, October 29, 1998, Decree of Sale at 4.) When there was no compliance with the court's order, despite notice having been provided, on April 15, 1999 representatives of the U.S. Marshals Service carried out the court's order.
The Decree of Sale Order also authorized the U.S. Marshal and his representatives to take all steps necessary to preserve the realty including retaining a locksmith or other person to change or install locks or other security devices on the realty until the deed thereto was delivered to the ultimate purchaser.
The United States Marshal is absolutely immune from civil damage claims where simply carrying out the facially valid orders of the court. Mays v. Sudderth, 97 F.3d 107, 112 (5th Cir. 1996). Such immunity derives from the absolute immunity of judges. Id. at 110-11; Valdez v. Denver, 878 F.2d 1285, 1286 (10th Cir. 1989) (these officials enjoy quasi-judicial immunity in suits challenging conduct prescribed by the court's order). A rule immunizing public officials carrying out court orders is necessary to avoid requiring those officials from scrutinizing the judicial order in question. Coverdell v. Dept. of Social and Health Services, 834 F.2d 758, 765 (9th Cir. 1987); see also Patterson v. Von Riesen, 999 F.2d 1235, 1289 (8th Cir. 1983); Henry v. Farmer City State Bank, 808 F.2d 1228, 1239 (7th Cir. 1986)
Nothing about the court's Decree of Sale order would indicate that it in any way was invalid. Accordingly, U.S. Marshal Enomoto is absolutely immune from suit challenging the carrying out of that order.
Plaintiff's suggestion that the U.S. Marshal "engaged in commerce" thereby waiving his immunity is unsupported by legal authority, frivolous and should be rejected.
Moreover, the United States Attorney General has certified pursuant to 28 U.S.C. § 2679(d)(2) that U.S. Marshal Enomoto was acting within the scope of his employment as an employee of the United States at the time of the events alleged in plaintiff's complaint. Thus, the action may not proceed against U.S. Marshal Enomoto. Rather, the United States is to be substituted in as the proper defendant with respect to plaintiff's claims. 28 U.S.C. § 2679(d)(1). Defendant U.S. Marshal Enomoto is entitled to dismissal.
As discussed in Section I, supra, plaintiff's claims against United States are barred. Counsel for the United States Marshals Service correctly notes that plaintiff's failure to exhaust administrative remedies would provide an alternative basis for dismissing such claims against the United States. 28 U.S.C. § 2675(a); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980).
Plaintiff proceeds against IRS defendants Meyer and Duane solely on the basis of their actions as attorneys for the government in the IRS's tax collection efforts. Attorneys representing the government are entitled to absolute immunity from damages liability in initiating and handling civil litigation such as that pursued against plaintiff. Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991) (IRS attorneys found to have absolute immunity in connection with their representation of the government in plaintiff's Tax Court case); Flood v. Harrington, 532 F.2d 1248, 1251 (9th Cir. 1976) ("[T]he doctrine of absolute immunity protects the defendant attorneys in this case if their allegedly improper conduct was "intimately associated with the judicial phases' of Flood's tax litigation."); Samuel v. Michaud, 980 F. Supp. 1381, 1401-02 (D. Id. 1996). Plaintiff has argued only that the named IRS attorneys should be subject to suit because they acted with "reckless disregard" in pursuing tax collection against him. Plaintiff's assertion is unavailing. Defendants Meyer and Duane are entitled to absolute immunity and their motion to dismiss should be granted.
B. Qualified Immunity
All of the individual defendants have moved to dismiss on the grounds that they are entitled to qualified immunity. They argue that plaintiff's allegations, accepted as true, would not establish the violation of any clearly established statutory or constitutional right of the plaintiff.
As a general rule, government officials performing discretionary functions are shielded from liability if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998), cert. denied, 526 U.S. 1018 (1999). The plaintiff has the burden of proving that the rights he claims are "clearly established." Brewster, 149 F.3d at 977. In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court held that a right is clearly established if "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640. Qualified immunity thus provides far-reaching protection to government officers. Brewster, 149 F.3d at 977.
Here, the individual defendants are entitled to qualified immunity in pursuing tax collection efforts authorized by law and in seeking and carrying out facially valid court orders. See Wages v. United States, 915 F.2d 1230, 1235 (9th Cir. 1990) ("[T]he defendants are clearly entitled to qualified immunity, since no prior decisions from our circuit have clearly established any of the constitutional rights alleged to have been violated in the amended complaint.") (emphasis in original). Accordingly, their motions to dismiss should be granted.
C. Bivens Action Barred
The individual defendants also argue that a constitutional tort claim stemming from the collection of taxes cannot be stated against them in light of the other remedies Congress has chosen to provide to taxpayers. Again, defendants' argument is persuasive. It is well-established that aBivens cause of action is unavailable in the arena of tax collection.Wages v. United States, 915 F.2d at 1235 (holding that remedies provided by Congress foreclose a Bivens action for alleged due process violations); see also Shreiber v. Mastrogiovanni, 214 F.3d 148, 153-54 (3d Cir. 2000) (and cases cited therein). As such, plaintiff's allegations against the individual IRS defendants and defendant U.S. Marshal Enomoto are barred.
D. Failure To State A Claim
The individual defendants contend that plaintiff's complaint must be dismissed for failure to state a cognizable claim against them. In this regard, they argue that plaintiff has failed to allege any specific actions on their part resulting in the violation of plaintiff's rights. In his opposition plaintiff argues that defendant Enomoto is responsible for training and supervising those acting on his behalf as U.S. Marshal, defendant IRS Commissioner Rossotti is ultimately responsible for the actions of those acting under him, defendant IRS Director Sullivan is responsible for training those acting on behalf of the IRS, IRS Agent Jones signed the tax liens that plaintiff continues to challenge and Nevada County participated by having deputies stand by without intervening while the other defendants unlawfully evicted plaintiff. Plaintiff's arguments are unpersuasive.
Bivens creates a cause of action only against federaly officials who participated directly in the claimed constitutional violation and the doctrine of respondeat superior cannot be invoked in such actions. Bibeau v. Pacific Northwest Research Found., Inc., 188 F.3d 1105, 1114 (9th Cir. 1999) (citing Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991)). Defendants have accurately characterized plaintiff's allegations. Accordingly, plaintiff has failed to state a cognizable claim against the individual defendants. See In re Verifome Securities Litigation, 11 F.3d 865, 868 (9th Cir. 1993)
To the extent plaintiff continues to contend, as he did in United States v. Wright, that the government lacked authority to pursue the collection of taxes from him and that the government's actions violated due process, he has also failed to state a claim upon which relief may be granted. First, plaintiff's claim that no statutory authority exists for the tax assessments or tax liens levied against him and his property have been rejected in United States v. Wright, and by all courts to consider such arguments. Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990). Second, the civil action commenced against plaintiff was specifically authorized by 26 U.S.C. § 7402 and 7403. See United States v. Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991). Third, the foreclosure sale of plaintiff's property and the procedure by which it was carried out clearly did not violate plaintiff's due process rights. The court's records indicate that plaintiff had a full and fair opportunity to contest the tax assessments and the government's foreclosure claim and availed himself of that opportunity through various motions before the district court and by way of appeal to both the Ninth Circuit and United States Supreme Court. Moreover, in its Order Confirming Sale and Distributing Proceeds filed August 20, 1999, the district court found that the public sale of the property had been conducted in compliance with both the Decree of Sale and the applicable statutory provisions. As one court has observed in affirming dismissal of a similar action seeking to challenge an IRS seizure:
Simply put, this is not a case where the plaintiff did not have access to judicial review. Whether the plaintiff is claiming a procedural or substantive due process violation, she had adequate levels of review to bring her allegations. Consequently, a Bivens action is not viable. The Supreme Court has repeatedly held that where internal revenue collection is at issue, a meaningful post-deprivation remedy will satisfy the Due Process Clause.Fishburn v. Brown, 125 F.3d 979, 983 (6th Cir. 1997) (citation omitted).
For all of these reasons plaintiff has failed to state a claim upon which relief may be granted.
Finally, defendants County of Nevada and Sheriff Royal have also moved to dismiss plaintiff's complaint. In opposing that motion plaintiff argues only that Nevada County participated in violating his rights merely by having deputies stand by without intervening while the other defendants unlawfully evicted plaintiff. Given the conclusion reached above that plaintiff has failed to state a claim against the federal defendants with respect to his removal from the property, his claim against the County defendants must necessarily be dismissed as well.
In light of the undersigned's recommendation that the County defendants' motion to dismiss be granted, the alternative motion for 26 a more definite statement need not be addressed.
III. Res Judicata and Collateral Estoppel
Defendants assert that this action is barred under the doctrines of res judicata and collateral estoppel since it is merely an attempt by plaintiff to relitigate the court's rulings surrounding the foreclosure and sale of his property in the case of United States v. Wright, Civ.S-94-1183 EJG GGH. The argument is meritorious.
As noted above, despite plaintiff's protestations to the contrary, most of the allegations of his complaint challenge the validity of the judgment entered in Case No. Civ.S-94-1183 EJG GGH. In that case outstanding federal tax assessments against plaintiff were reduced to judgment, tax liens on the real property on Yukon Way in Nevada City were foreclosed upon and a Judgment of Foreclosure and Decree of Sale were entered with the foreclosure sale of the property being confirmed by court order. Plaintiff's post-judgment motions brought pursuant to Fed.R.Civ.P. 59 and 60 were denied. The Ninth Circuit Court of Appeals affirmed the judgment and dismissed plaintiff's later appeal from the Judgment of Foreclosure and Decree of Sale.
Under the doctrine of res judicata, "`[a] final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action.'" The Fund for Animals. Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992) (citations omitted). The doctrine of res judicata consists of two concepts, issue preclusion (aka collateral estoppel) and claim preclusion. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984). "Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided." Id. "Claim preclusion bars the assertion of any theory of recovery that could have been asserted in the first action." Fund for Animals, 962 F.2d at 1398 (citations omitted).
Plaintiff baldly asserts that this case presents a completely different claim than the earlier action and he argues that the prior judgment should be set aside pursuant to Fed.R.Civ.P 60(b) because it was obtained by fraud upon the court. Plaintiff's arguments are unavailing. He provides no support for his assertion that this case presents entirely different claims than those litigated in the earlier action. Federal Rule of Civil Procedure 60(b) provides that a court may relieve a party from a final judgment, order or proceeding for, among other reasons, newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) or fraud, misrepresentation or other misconduct of an adverse party.
As Judge Garcia observed in denying plaintiff's various motions for relief from the Judgment of Foreclosure and Decree of Sale in United States v. Wright, in order to seek relief from a judgment entered one must present newly discovered evidence, not newly discovered legal theories. United States v. Wright, Civ.S-94-1183 EJG GGH, Order filed December 29, 1998 at 7 (citing Hagerman v. Yukon Energy Corporation, 839 F.2d 407, 414 (8th Cir. 1988)). Plaintiff's assertion that the earlier judgment was obtained by way of fraud upon the court is apparently based on plaintiff's resurrection of his argument that the government improperly relied upon Certificates of Assessments and Payments (Form 4340) in obtaining the earlier judgment. (Compl., Ex. E, 4-20.) First, the forms in question have been found to be admissible evidence constituting proof that tax assessments were properly made. Koff v. United States, 3 F.3d 1297, 1298 (9th Cir. 1993) (citing United States v. Hughes, 953 F.2d 531, 535 (9th Cir. 1992)). More importantly for purposes of this motion, plaintiff's allegations even if accepted as true would not support a claim of fraud justifying the setting aside of the earlier judgment. As one court has observed in rejecting a similar assertion of fraud upon the court:
See fn. 2, supra.
Fraud in the legal process is not actionable if it is incapable of obstructing the opposing litigant. An erroneous legal contention, being out in the open as it were, does not have obstructive capability, and is not fraud merely because if believed it would confer an advantage on the party making it. If that were the standard for fraud on the court, no civil judgments would be final; every legal error that a judge committed that had been invited by the winning litigant would be, prima facie, fraud on the court.Oxford Clothes XX. Inc. v. Expeditors Int'l of Washington D.C., 127 F.3d 574, 578 (7th Cir. 1997) (citations omitted). See also Fleury v. Clayton, 847 F.2d 1229, 1233 (7th Cir. 1988) ("The Due Process Clause does not authorize collateral attacks on civil judgments.").
Here, plaintiff Wright's claims that: (1) no authority exists for the assessment of taxes and the assertion of tax liens against him and his property; (2) no authority existed for the commencement of the civil action against him; (3) that the government's claim against him had been extinguished by the time of his eviction; (4) the evidence offered by the government in the civil proceeding was improper; and (5) the foreclosure sale and eviction of plaintiff from his property violated his due process rights, have all been litigated in United States v. Wright and resolved adversely to plaintiff. He cannot collaterally attack that judgment in these proceedings. Plaintiff's claims are barred by the doctrines of collateral estoppel and res judicata. Accordingly, this action should be dismissed.
Given the numerous fatal deficiencies discussed above it appears clear that plaintiff cannot cure the defects and that granting leave to amend would be futile. See Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990); Rutman Wine Co. v. E. J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) Accordingly, it will be recommended that this action be dismissed with prejudice.
PLAINTIFF'S MOTIONS TO STRIKE
Plaintiff has moved to strike the motions to dismiss filed on behalf of the U.S. Marshals Service defendants and the IRS defendants on the following grounds: (1) the defendants have arbitrarily changed the venue of this action from the district court of the United States where plaintiff brought the action to the United States District Court for the Eastern District of California; (2) plaintiff's complaint is brought against the United States and the defendants have improperly joined a third party defendant identified by the defendants as the United States of America; and (3) the court's orders in United States v. Wright submitted as exhibits by defendants are misleading, irrelevant and inadmissable because the instruments were stamped "Accepted for Value, This Property is Exemp From Levy" by plaintiff.
In addition, plaintiff has moved to strike the Attorney General's Certification under 28 U.S.C. § 2679(d)(2) that U.S. Marshal Enomoto was acting within the scope of his employment as an employee of the United States at the time of the events alleged in plaintiff's complaint. Plaintiff argues that the certification is not relevant and he contests its assertion, arguing that the U.S. Marshals Service defendants acted in excess of their authority.
Defendants oppose the motions to strike on the grounds that they are frivolous. The undersigned agrees and will recommend that plaintiff's motions to strike be denied in their entirety.
PLAINTIFF'S MOTION TO COMPEL
As noted, following the hearing on defendants' motions to dismiss, plaintiff filed a motion to compel a response to his "Request for Disclosure Number One." That Request for Disclosure sought information from the defendants regarding the "real names" of certain named and potential defendants, their home and work address and telephone numbers and copies of all relevant documents to this action including those to be relied upon by the defense. (Federal Defendants' Initial Ex Parte Application to Extend Time to Respond and Order (Doc. No. 14), Ex. A.) Upon application the court continued the defendants' time to respond to the Request for Disclosure until after the court's ruling on the pending motions to dismiss.
In light of the undersigned's recommendation that plaintiff's complaint be dismissed with prejudice, plaintiff's motion to compel will be denied as moot.
In various documents submitted in connection with the pending motions plaintiff has indicated that he wishes to "withdraw his consent" to proceed before a Magistrate Judge in this action. In fact, this action has not been reassigned to a Magistrate Judge pursuant to the consent of the parties under 28 U.S.C. 636(c). Rather, it has merely been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) under Local Rule 72-22 302(c)(21). Plaintiff apparently misunderstands the scope of the referral under that Local Rule. In any event, as indicated, these findings and recommendations are being submitted to the United States District Judge assigned to the case and plaintiff will be provided an opportunity to file written objections thereto.
CONCLUSION
The undersigned apologizes to the parties for the oversight that resulted in the delay of the issuance of this order and findings and recommendations.
IT IS HEREBY RECOMMENDED that:
1. Defendants' motions to dismiss (Doc. Nos. 3, 4, 17 and 18) be granted and plaintiff's complaint be dismissed with prejudice; and
2. Plaintiff's motions to strike the defendants' motions and certification (Doc. Nos. 23, 25 and 26) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).