Berridge v. Heiser

• Decision Date: 04 December 1997
• Docket Number: No. C-2-95-272.,C-2-95-272.
• Citation: 993 F.Supp. 1136
• Parties: Paul J. BERRIDGE, et al., Plaintiffs, v. Lawrence A. HEISER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

993 F.Supp. 1136

Paul J. BERRIDGE, et al., Plaintiffs, v. Lawrence A. HEISER, et al., Defendants.

No. C-2-95-272.

United States District Court, S.D. Ohio, Eastern Division.

December 4, 1997.

Reconsideration Denied February 5, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul J. Berridge, pro se.

Linda G. Berridge, pro se.

Arthur James Marziale, Jr., Elizabeth A. Scott, Andrew S. Bergman, Ohio Attorney General — 2, Chief Counsel's Staff Section, Columbus, OH, for Defendant.

OPINION AND ORDER

KINNEARY, District Judge.

This matter is before the Court on two motions to dismiss filed by Defendants, including the motion to dismiss Plaintiffs' Amended Complaint filed by Defendant, Lawrence A. Heiser, and United States' motion to dismiss. Defendant Heiser also requests the opportunity to present an oral argument on his motion. For the reasons stated below, the Court GRANTS Defendants' motions. The Court DISMISSES Counts I through IV WITH PREJUDICE with the exception of that portion of Count III that relates to the improper disclosure of information; the Court DISMISSES that portion of Count III WITHOUT PREJUDICE. Finally, the Court finds that (1) the request by Defendant, Lawrence A. Heiser, for oral arguments pursuant to Southern District of Ohio Local Rules 7.1(b)(1); and (2) Defendant Heiser's motion to dismiss on the basis of qualified immunity are MOOT. This case is TERMINATED.

I. FACTS

Plaintiff Paul Berridge inherited 230 acres of coal mining land in southern Ohio. In the 1940s and 1950s, well before Plaintiff Paul Berridge acquired the land, the previous owners used the land as a strip mine. At the time of inheritance, one hundred forty acres of the mine was devoid of vegetation and leaching acidic water into a nearby stream. After acquiring the land, Plaintiffs, Paul and his wife, Linda Berridge, decided to operate a small coal mine reclamation business on the land.

In 1979, Plaintiffs applied for and received a $900,000 grant from a state abandoned mine reclamation program. The grant was to be used for cleaning up the environmental problems associated with the land. Plaintiffs used the grant money for work done on the mine in 1981 and 1982.

On April 11, 1987, the IRS ruled that this $900,000 grant received by Plaintiffs would be treated as "ordinary income" for the purposes of Plaintiffs' tax returns. Plaintiffs had not included the grant money in their tax returns as ordinary income and had thus grossly underpaid their federal income taxes. Consequently, the IRS recalculated Plaintiffs' taxes for a number of years and a delegate of the Secretary of the Treasury of the United States issued a notice of tax deficiency in the amount of $776,161.70 in back taxes and interest.

The IRS's decision was widely reported. Two articles about the decision appeared in various reporters published by the Bureau of National Affairs ("BNA"), a legal publisher based in Washington, D.C. (See Doc. # 45 Ex. 16.)

Following the IRS's decision, Plaintiffs brought suit in this Court seeking a temporary restraining order to restrain Plaintiffs' creditors from foreclosing their secured assets until Plaintiffs could have their tax issues resolved in United States Tax Court. See Berridge v. IRS, No. C-2-87-742 (S.D. Ohio filed Feb. 18, 1988). This Court denied Plaintiffs' motion for the temporary restraining order.

After losing their suit in this Court, Plaintiffs still had the option to appeal the IRS' ruling in Tax Court. Plaintiffs, however, failed to pursue their claim in Tax Court. On September 22, 1987, a delegate of the Secretary of the Treasury recorded a Notice of Federal Tax Lien in the amount of $776,161.70 based upon the assessments made against Plaintiffs. The notice was recorded in the Recorder's Office of Jackson County, Ohio.

Next, the State of Ohio took the IRS's calculation of the Plaintiffs' ordinary income and recalculated the amount of state taxes owed by the Plaintiffs for relevant tax years. The State of Ohio determined that Plaintiffs owed the state approximately $113,000. In 1989, the Ohio Department of Taxation filed a Precipe — a written instruction to the clerk of courts telling the clerk to take some action — and took a lien against Plaintiffs for approximately that amount.

On November 28, 1994, Lawrence Heiser, Special Counsel for the Attorney General of Ohio appointed pursuant to Ohio Revised Code Annotated § 109.08 (Anderson 1990), filed suit in the Court of Common Pleas for Jackson County (Ohio) to satisfy the lien for the State of Ohio. Throughout December 1994 and January 1995, Heiser filed affidavits of garnishment. As a result of these filings, Judge Leonard F. Holzapfel of the Court of Common Pleas for Jackson County (Ohio) ordered various accounts and personal earnings of Plaintiffs garnished. Plaintiffs filed objections to the garnishments. On January 3, 1995, Judge Holzapfel conducted a hearing on the garnishment of Plaintiffs' personal earnings. Judge Holzapfel found that certain funds garnished by Heiser actually belonged to Plaintiffs' son and were not properly garnished.

Because Plaintiffs alleged that the State of Ohio's lien was junior to the United States' lien, Plaintiffs then joined the United States of America as a party in the Jackson County case. The United States removed that lawsuit to this Court. On June 20, 1995, this Court dismissed the action. This Court noted that:

On June 1, 1995, the State of Ohio Department of Taxation filed a notice of voluntary dismissal under [Federal Rule of Civil Procedure] 41(a)(1)(I).... The Court of Common Pleas for Jackson County, Ohio has jurisdiction over the garnished monies, and [Plaintiffs] should petition that court for the release of the garnished monies.

Counsel for the United States indicated that the [IRS] has advised her that some or all of [Plaintiffs'] federal taxes are going to be abated. There may or may not be some small remaining Federal tax liability. [Counsel for the United States] believes that the IRS is close to issuing the abatement and hope to do so in a couple of weeks.

State of Ohio, Dep't of Taxation v. Berridge, No. C-2-95-445 (S.D. Ohio filed June 20, 1995). On June 26, 1995, Judge Holzapfel released some of the garnishment funds to Plaintiffs.

In the interim, Plaintiffs filed the present suit. In their amended complaint, Plaintiffs claim in Count I that Defendant Heiser deprived Plaintiffs of their Fourteenth Amendment substantive and procedural due process by engaging in the garnishment proceedings. Further, Plaintiffs request both a judgment that the procedures be held unconstitutional and an order requiring Defendant Heiser to remove the judgment liens. In Count II, Plaintiffs ask for punitive damages for Defendant Heiser's alleged abuse of office. In Count III, Plaintiffs bring a cause of action against the United States of America for improperly disclosing their tax information to Defendant Heiser. "[A]s a secondary additional action," Plaintiffs seek a judgment that the procedures followed by the IRS violated Plaintiffs' Fifth Amendment substantive and procedural due process rights. Finally, in Count IV of their Amended Complaint, Plaintiffs claim that the IRS violated the Privacy Act by not making a proper factual record of Plaintiffs' tax information and by failing to maintain proper tax records. In Count IV, Plaintiffs also allege that the IRS improperly disclosed information about Plaintiffs' tax case to BNA. Plaintiffs allege that BNA used that improperly disclosed information in its articles about Plaintiffs' tax case.

II. STANDARD OF REVIEW

Defendants move to dismiss Plaintiffs' Amended Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim upon which relief can be granted. The purpose of a motion under Rule 12(b)(6) is to test the sufficiency of the complaint. When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See generally Rauch v. Day & Night Mfg., 576 F.2d 697, 702 (6th Cir.1978); Ott v. Midland-Ross Corp., 523 F.2d at 1367, 1369 (6th Cir.1975); Brennan v. Rhodes, 423 F.2d 706 (6th Cir.1970).

In this case, Plaintiffs are proceeding pro se. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A court should make a reasonable attempt to read the pleadings to state a valid claim on which the plaintiff could prevail, despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with the pleading requirements. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). This standard does not mean, however, that pro se plaintiffs are entitled to take every case to trial. See Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996). Indeed, courts should not assume the role of advocate for the pro se litigant. See Hall, 935 F.2d at 1110.

III. MOTIONS TO DISMISS BY HEISER

A. Due Process Violation — Count I

In the first count of Plaintiffs' amended complaint, Plaintiffs bring an action under 42 U.S.C. § 1983 alleging that Defendant Heiser deprived them of their civil rights. In particular, Plaintiffs allege that Heiser violated both their "[s...