Cook v. United States, Civ. No. LV 74-140.

• Citation: 387 F. Supp. 1103
• Decision Date: 27 December 1974
• Docket Number: Civ. No. LV 74-140.
• Parties: Antone R. COOK, Plaintiff, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — District of Nevada

387 F. Supp. 1103

Antone R. COOK, Plaintiff, v. UNITED STATES of America et al., Defendants.

Civ. No. LV 74-140.

United States District Court, D. Nevada.

December 27, 1974.

ORDER

ROGER D. FOLEY, Chief Judge.

FACTS

On September 25, 1974, Plaintiff Cook filed a Petition and Complaint against the above named defendants. By earlier order of this Court, the action was dismissed as to the Government defendants. Therefore, the only remaining defendants are First National Bank of Nevada and Deseret Federal Credit Union.

Plaintiff alleges that on September 5, 1974, an Internal Revenue Service Summons was issued upon the bank and credit union, seeking information, copies of accounts, records and checks for the purpose of establishing criminal liability against him. He also alleges that Special Agent Smith has obtained, or is seeking to obtain, this information by extortion and threats of criminal prosecution under the Bank Secrecy Act of 1970 and 26 U.S.C. § 7210. Cook claims that these checks, accounts and records, and the information relating thereto, are his personal papers and effects within the scope of the Fourth Amendment to the Constitution of the United States. Plaintiff therefore alleges that he is entitled to an injunction prohibiting the bank and credit union from giving any information about his personal accounts to IRS agents.

Plaintiff alleges that this Court has jurisdiction as this is a case and controversy arising in law and equity under the Constitution and laws of the United States and more particularly Articles III, IV, V, and VI, the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Thirteenth Amendments, and Title 26 of the United States Code. In addition, he alleges that this Court has jurisdiction under 42 U.S.C. §§ 1983, 1985 and 1986, stating that the purpose of this action is to protect his civil rights.

Plaintiff sought a temporary restraining order, which was denied by this Court on October 4, 1974. On that same date, this Court ordered all defendants to appear and show cause on November 14, 1974, why a preliminary injunction should not issue.

Defendant First National Bank filed its answer to Cook's Complaint and Petition on October 16, 1974, stating as an affirmative defense that Cook failed to state a claim upon which relief can be granted. Defendant Deseret Federal Credit Union failed to answer, and has otherwise failed to appear in this action.

The Government defendants filed a motion to dismiss them from this action, and the hearing on this motion was also set for November 14, 1974. This motion was subsequently granted.

At the November 14th hearing, Deseret Federal Credit Union was not present or represented by counsel. First National Bank was represented by counsel, stating only that it would comply with any order of this Court. Following completion of oral argument, the matter stood submitted.

DISCUSSION

At the hearing, this Court expressed its concern as to whether it had jurisdiction to grant the relief requested and whether plaintiff had standing to raise the instant objections. Cook's counsel directed his argument to plaintiff's Fourth and Fifth Amendment claims, and did not assert that the Court has jurisdiction under Title 42. However, since the stated purpose of this suit is to protect Cook's civil rights, his allegation that this Court has jurisdiction under 42 U.S.C. §§ 1983, 1985 and 1986 will first be considered.

It is first noted that plaintiff alleges that these sections of Title 42 confer jurisdiction upon this Court. But the provisions of Title 42 only confer remedies for the enforcement of rights arising under the Constitution or federal law. Here they merely afford a remedy in cases to which jurisdiction is granted by 28 U.S.C. § 1343. Hagans v. Lavine, 415 U.S. 528, 534-536, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Howard v. State Department of Hwys. of Colorado, 478 F.2d 581, 585 (10th Cir. 1973); Quarles v. State of Texas, 312 F.Supp. 835, 837 (S.D.Tex.1970). However, plaintiff's allegation of jurisdiction under 42 U.S.C. §§ 1983, 1985 and 1986 may be construed as asserting jurisdiction under 28 U.S.C. § 1343, and will be so construed. Quarles v. State of Texas, supra, 312 F. Supp. at 837.

There can be no doubt that "state action" is required for there to be a claim under § 1983. Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973); Hall v. Garson, 430 F.2d 430, 439 (5th Cir. 1970). Here there is no allegation made, nor can there be, that "state action" is present. Therefore, Cook has not presented a claim under § 1983. Likewise, to state a cause of action under § 1985, it is necessary that there be an allegation that there was a conspiracy to deny plaintiff a constitutional right, privilege or immunity, Jones v. Bombeck, 375 F.2d 737, 738 (3rd Cir. 1967), and no claim for relief under § 1986 will lie unless a valid claim has first been established under § 1985. Johnston v. National Broadcasting Company, Inc., 356 F.Supp. 904, 909 (E.D.N.Y.1973). Here Cook has failed to allege that there was a conspiracy to deprive him of any right, privilege or immunity, thus he has failed to state a cause of action under either § 1985 or § 1986. It is therefore concluded that Cook has failed to state a cause of action under Title 42, and this Court has no jurisdiction under 28 U.S.C. § 1343.

However, there is also Cook's sweeping allegation that this is a case arising under the Constitution and laws of the United States. This could be construed as alleging jurisdiction under 28 U.S.C. § 1340, which provides that "district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue . . . ." In Kirschenbaum v. Beerman, 376 F.Supp. 398 (W. D.Pa.1974), plaintiffs filed a complaint seeking to quash, by means of injunction, several IRS summonses served upon their banks. On the jurisdictional issue, the court held:

This Court has jurisdiction under 28 U.S.C. § 1340 since the suit involves a substantial controversy as to the construction and effect of 26 U.S. C. § 7602. DeMasters v. Arend, 313 F.2d 79 (9th Cir. 1963). The Court is satisfied that this suit is not "an action for the purpose of restraining the assessment or collection of any tax", precluded by 26 U.S.C. § 7421(a). 376 F.Supp. at 399.

Cook alleges that this is not an action to bar the lawful collection or assessment of taxes, and the Court is satisfied that it has jurisdiction to hear the matter under § 1340.

But this does not resolve the standing issue, for as Judge Teitelbaum held in Kirschenbaum:

However, it is also readily apparent that none of the plaintiffs have standing to maintain this action, since they are not named as parties to the summonses. (citation omitted) This case is governed by the decision of the Supreme Court in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), in which a similar injunction request by a taxpayer was held to have been properly dismissed for lack of standing. Reisman held that the only proper method for a taxpayer to challenge a Section 7602 summons would be to intervene in the action brought by the government to enforce the summons. Therefore, plaintiffs' injunction request must be dismissed. 376 F.Supp. at 399.

When the Court raised this standing issue at the hearing, Cook's counsel relied on Kelley v. United States, 503 F.2d 93 (9th Cir. 1974), and Fitzmartin v. Bingler, 244 F.Supp. 541 (W.D.Pa.1965).

In Kelley, the taxpayer sought to enjoin the enforcement of an IRS summons issued pursuant to Section 7602. The summons commanded Kelley's bank to produce all records pertaining to her. She sought an order restraining the bank from granting the IRS access to the records and restraining the IRS from enforcing the summons. The district court dismissed her complaint for lack of jurisdiction and failure to state a claim. Citing Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), the Ninth Circuit held:

Injunction by a taxpayer will not lie against the Internal Revenue Service or its officers in a situation such as this. A remedy at law exists through intervention of the taxpayer in judicial proceedings brought by the Commissioner in enforcement of his summons. 503 F.2d at 93.

It was on the basis of this holding that this Court earlier dismissed the action as to the Government defendants.

However, the court in Kelley was faced with the problem that the taxpayer's bank had indicated willingness to comply with the summons, thus obviating the necessity for enforcement proceedings. With reference to this problem, the Ninth Circuit quoted, 503 F.2d at 94, the following from Reisman:

Nor would there be a difference should the witness indicate * * * that he would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Bromleys might have intervened and asserted their claims. 375 U.S. at 449-450, 84 S.Ct. 508, at 514, 11 L. Ed.2d 459.

The Kelley court then examined Fitzmartin v. Bingler, supra, which followed the suggestion set forth in Reisman. In Fitzmartin, the IRS issued a summons to the taxpayers' bank. The bank notified taxpayers that it would comply unless restrained. Taxpayers filed an action to enjoin the Commissioner, the IRS Agent and the bank from complying with the subpoena, and a temporary restraining order was issued at taxpayers' request, without notice or hearing staying the defendants from further action under the subpoena. The Commissioner appeared and requested the dismissal of the complaint and the vacating of the restraining order in accordance with Reisman. The Fitzmartin court, in examining the...