Brian v. Gugin

• Decision Date: 11 February 1994
• Docket Number: No. CV 93-0380-E-EJL.,CV 93-0380-E-EJL.
• Citation: Brian v. Gugin, 853 F.Supp. 358 (D. Idaho 1994)
• Parties: Ralph BRIAN, Karen Brian, Koreen Morgan, and Robert Chapple, Plaintiffs, v. Phylis J. GUGIN, James Mason, Cheryl Mosby, Richard Owens, Special Agent Hines of the IRS, Madison County Prosecutor, Sid Brown, Madison County Sheriff, Gregg Moffit, and Pat Molloy, U.S. Attorney, Defendants.
• Court: U.S. District Court — District of Idaho

853 F. Supp. 358

Ralph BRIAN, Karen Brian, Koreen Morgan, and Robert Chapple, Plaintiffs, v. Phylis J. GUGIN, James Mason, Cheryl Mosby, Richard Owens, Special Agent Hines of the IRS, Madison County Prosecutor, Sid Brown, Madison County Sheriff, Gregg Moffit, and Pat Molloy, U.S. Attorney, Defendants.

No. CV 93-0380-E-EJL.

United States District Court, D. Idaho.

February 11, 1994.

COPYRIGHT MATERIAL OMITTED

Ralph Brian, Karen Brian, Robert L. Chapple and Koreen Morgan, plaintiffs pro se.

Betty H. Richardson, U.S. Atty., Boise, ID and Richard R. Ward, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, DC, for the U.S. and federal defendants.

James D. Carlson, Hamlin & Sasser, Boise, ID, for Madison County defendants.

MEMORANDUM DECISION AND ORDER

LODGE, Chief Judge.

Pending before this court are four motions. Defendants Sid Brown ("Brown") and Gregg Moffit ("Moffitt"), who are employees of Madison County, Idaho, have filed a motion to dismiss plaintiffs' complaint (Dkt. # 5) and a motion to strike plaintiffs' amended complaint (Dkt. # 23). Defendants Phylis J. Gugin, James Mason, Cheryl Mosby, Richard Owens, Special Agent Hines of the IRS, and Pat Molloy, United States Attorney (collectively referred to as the "Federal Defendants") have filed a motion to dismiss plaintiffs' complaint (Dkt. 9). Plaintiffs have filed a motion for a temporary restraining order against the Federal Defendants (Dkt. # 22). Each motion will be individually addressed by the court.

Having fully reviewed the record herein in preparation for the temporary restraining order hearing, the court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the court conclusively finds that the decisional process would not be significantly aided by oral argument, the pending motions shall be decided on the record before this court without oral argument. Local Rule 7.1(b).

FACTUAL BACKGROUND

Plaintiffs initiated the present action on September 29, 1993, by filing a complaint against several employees of the Internal Revenue Service ("IRS"), the former acting United States Attorney for the District of Idaho, and two officials of Madison County, Idaho. The essence of the complaint is that the IRS agents did not have a court order when they attempted to seize property of plaintiff Ralph Brian for delinquent taxes and the plaintiffs allege that such action violated the law. The plaintiffs then seek to recover against the county employees who failed to arrest and prosecute the IRS employees who were allegedly breaking the law. The complaint states jurisdiction is pursuant to 28 U.S.C. § 1343. The complaint claims the action of the defendants violated the plaintiffs' 4th, 6th and 14th Amendment rights as well as their civil rights under 42 U.S.C. §§ 1983-1986. Finally, the complaint seeks $500,000 for damage to the character of the defendants based on unfavorable publicity; punitive damages in the amount of $500,000; reasonable costs and expenses of bringing the action; and further relief as the court deems just.

On November 15, 1993, Brown and Moffit filed their motion to dismiss pursuant to 12(b)(6) of the Federal Rules of Civil Procedure. The Federal Defendants filed their motion to dismiss the complaint on December 13, 1993, pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On January 7, 1994, without leave of the court, the plaintiffs filed an amended complaint. Such amended complaint attempts to address the issues raised in Brown and Moffit's motion to dismiss and expands the statutory violations to include 18 U.S.C. §§ 241-242, Internal Revenue Code §§ 7214, 7403(a) and (b); Idaho Code §§ 18-7011 and 18-703.

At the same time as the amended complaint was filed, the plaintiffs filed a motion for a temporary restraining order against certain IRS employees. Brown and Moffit filed a motion to strike plaintiffs' amended complaint on January 18, 1993.

STANDARD OF REVIEW

In determining whether the plaintiffs have failed to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, this court must accept the pleaded factual allegations of the complaint as true, viewing those allegations in the light most favorable to the plaintiffs. Because the plaintiffs filed their complaint pro se, their complaint is to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).

ANALYSIS

1. Failure to State a Claim Under Rule 12(b)(6)

Based on plaintiffs' briefing, it is clear that the plaintiffs have misconstrued the defendants' arguments relating to Rule 12(b)(6). The defendants do not argue that plaintiffs have failed to state their requested relief in their complaint. The plaintiffs point out correctly that they have set forth their requested relief on page 8 of the complaint. Instead, the defendants argue that a 12(b)(6) dismissal is appropriate since the plaintiffs cannot bring the type of action they have filed against individuals acting in their official capacities or where such individuals are granted immunity or where the federal government has not consented to waive its sovereign immunity. For these reasons, the defendants argue that plaintiffs have failed to state a claim upon which relief can be granted.

2. Requirement of a Court Order

The plaintiffs' premise for their complaint is that the IRS agents were required to have a court order in order to be able to legally seize property for delinquent taxes. Unfortunately, this is a faulty premise. Title 26 U.S.C. § 6331 authorizes the IRS to seize property of any person liable for any tax upon ten days notice. The plaintiffs are incorrect in stating that §§ 6331 and 6321 only apply to the Bureau of Alcohol, Tobacco and Firearms. The statute specifically states that any person may have their property levied upon. 26 U.S.C. §§ 6331(a) and 6321. The plaintiffs also cite 26 U.S.C. § 7402 which grants jurisdiction to the district courts to issue orders, processes and judgments as well as enforce IRS summons. This section does not require a court order in order to levy on property under § 6331.

A "levy" by definition is a summary non-judicial process which provides the IRS with a prompt and convenient method for satisfying delinquent tax claims. Singleton v. U.S., 73-1 USTC, 1972 WL 435 (W.D.Pa. 1972). In Maisano v. Welcher, 940 F.2d 499 (9th Cir.1991), the court specifically interpreted § 6331 and held that § 6331 applies to all property of any person liable to the IRS. The court also held that the IRS has the option under § 6502 to collect its assessment by either a levy or a court proceeding, and taxpayers do not have the right to a hearing prior to collection efforts by the IRS. Id. at 502. Also see, Vote v. U.S., 753 F.Supp. 866 (D.Nev.1991) aff'd, 930 F.2d 31 (9th Cir.1991).

Plaintiff Ralph Brian acknowledges on the Notice of Seizure attached as an exhibit to the complaint that notice of tax liens had been filed by the IRS with the county recorder. The Notice of Tax Lien Under Internal Revenue Laws submitted by the plaintiffs is dated August 19, 1992. The Notice of Seizure and Levy are each for $11,285.90. The Notice of Seizure is dated September 20, 1993, which is the date the plaintiffs allege the IRS agents entered the property to seize the property of Ralph Brian. The date on the Levy cannot be made out on the copy submitted by the plaintiffs, but the plaintiffs indicate in their complaint that the Notice of Seizure and the Levy were received at the same time. See, complaint, p. 3. Plaintiffs do not argue in their pleadings or briefing that the statutory requirements for the levy were not complied with. Therefore, this court will assume from the facts presented by the parties that the procedure of the filing of the notice of lien with the county, the notice of lien being sent to the taxpayer, notice of seizure and levy forms being provided to the taxpayer at time of seizure were all properly completed.¹

Accordingly, the IRS agents were acting within the authority granted under § 6331 and no court order was required for the attempted levy on Ralph Brian's property. Concerning the constitutional violations alleged by the plaintiffs, this court cannot find that any constitutional rights were allegedly violated if the attempted seizure was lawful under § 6331.

It is important to note that the plaintiff Ralph Brian is not without a course of action under the Internal Revenue Code. If the delinquent taxes claimed are not delinquent, the taxpayer may bring an action with the IRS for a refund. The court finds that the plaintiffs could have a course of action under § 7433 if the plaintiffs could allege facts showing the IRS agents recklessly or intentionally disregarded the Internal Revenue Code. Facts of this nature have not been alleged by the plaintiffs in either their complaint of amended complaint.

3. Fourth Amendment Allegations

As to Fourth Amendment violation allegations, the plaintiffs must establish that they had a "reasonable expectation of privacy" for any cars in the driveway that the IRS agents were attempting to seize. The Maisano court held that Fourth Amendment rights are not violated by the IRS seizing a vehicle without a warrant or a writ of entry where the automobiles being seized were in streets, parking lots and other open places. Id. at 503. On pages 3 and 4 of the complaint, plaintiffs allege that the properties being seized were vehicles and that the IRS agents forcibly began tagging the vehicles. The amended complaint eliminates the allegation of force but does state the driveway was enclosed.

On or about September 20, 1993, the above named Agents, Gugin, Mason, Mosby, Hines and Owens, employed by the Internal Revenue Service, entered the property of Ralph and Karen Brian of 450 W. Main, Rexburg, Idaho, without their permission for the

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