Cox v. United States

Decision Date31 May 2017
Docket NumberCiv. No. 17-00001 JMS-KSC
PartiesJANIS L. COX, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
CourtU.S. District Court — District of Hawaii

JANIS L. COX, Plaintiff,

Civ. No. 17-00001 JMS-KSC


May 31, 2017



On January 3, 2017, pro se Plaintiff Janis L. Cox ("Plaintiff") filed a Complaint against the United States of America; the Internal Revenue Service ("IRS"), Revenue Officer Kelly Gurney ("Gurney"); the Department of Justice Civil Tax Division ("DOJ"); Tax Inspector General Tax Administration ("TIGTA"); the United States Senate; and the United States House of Representatives (collectively, "Defendant").1 On March 14, 2017,

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Defendant filed a Motion to Dismiss for lack of subject-matter jurisdiction and failure to state a plausible claim for relief. ECF No. 20. And on May 11, 2017, Plaintiff filed a Request for Directed Verdict and Summary Judgment. ECF No. 31. Based on the following, the court GRANTS Defendant's Motion to Dismiss, and DENIES Plaintiff's Request for Directed Verdict and Summary Judgment as moot.


A. Factual Background

As alleged in the Complaint, on June 1, 2016, IRS revenue officer Gurney issued a Notice of Levy on Plaintiff's social security income. The Notice of Levy was issued because of a $423,856.38 debt that Plaintiff allegedly owed, as of July 1, 2016, for unpaid income taxes for tax periods 2001-2010. Compl. at PageID #69, ECF No. 1-1;2 Notice of Levy, ECF No.

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1-4; Gurney Correspondence, ECF No. 1-6. The Complaint also references $60,000 that was "fraudulently confiscated by the IRS and DOJ," the IRS' seizure of Plaintiff's home in San Antonio, Texas in 2008, and the subsequent sale of that home for "$249,000" at an "IRS auction." Compl. at PageID #78.

Aside from those brief factual allegations, the nearly eighty-page Complaint is primarily devoted to explaining Plaintiff's belief that the entire IRS tax assessment and collection scheme is illegal and that she is immune from having to paying taxes. To support her position, the Complaint asserts numerous opinions, assumptions, conclusory allegations, and pronouncements as "facts."3 And interspersed throughout the

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Complaint are references to a host of federal statutes and regulations that purportedly provide authority for Plaintiff's challenge to the overall tax system and/or that Defendant has violated in furtherance of the alleged illegal tax assessment and collection scheme.

Plaintiff seeks (1) injunctive relief requiring the IRS to revoke the levy and to stop continued collection efforts; (2) damages of "$100,000 for pain and suffering," $10,000 for "court costs and legal research, and additional unspecified compensatory damages;" (3) a refund of $60,000 that was "fraudulently confiscated by the IRS and DOJ;" (4) a refund of "$249,000 for [her] house . . . in San Antonio, Texas . . . [that was] seized in February 2008 . . . and sold at IRS auction;" and (5) prosecution of the criminal acts alleged in the Complaint. Compl. at PageID #77-78.




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B. Procedural Background

Plaintiff filed her Complaint on January 3, 2017. ECF No. 1. On March 10, 2017, Plaintiff filed a First Addendum to Complaint.4 ECF No. 18. On March 14, 2017, Defendants filed the instant Motion to Dismiss. ECF No. 20. On March 30, 2017, Plaintiff filed a document titled "Plaintiff's Opposition Memorandum . . . Motion to Strike[,] Motion for Summary Judgment[, and] Motion for Directed Verdict." ECF No. 24. On March 31, 2017, this court denied the Motion to Strike, and denied without prejudice the Motions for Summary Judgment and Directed Verdict (the "March 31 Order"). ECF No. 25. On April 3, 2017, Plaintiff filed a document titled "Evidence and Proof," in support of her Motion to Strike and Motions for Summary Judgment and Directed Verdict. ECF No. 26. The court construed this document as a motion for reconsideration of the March 31 Order, and denied reconsideration on April 4, 2017 (the "April 4 Order"). ECF No. 27.

On April 6, 2017, the Government filed its Reply. ECF No. 28. Plaintiff filed an additional Memorandum in Opposition on April 10, 2017.

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ECF No. 29. On April 17, 2017, Plaintiff filed a Response to the Government's Reply and to this court's April 4 Order. ECF No. 29. And on May 11, 2017, Plaintiff filed a Request for Directed Verdict and Summary Judgment. ECF No. 31.

Pursuant to Local Rule 7.2(d), the court finds these matters suitable for disposition without a hearing.


A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks proper subject-matter jurisdiction. The moving party "should prevail [on a Rule 12(b)(1) motion to dismiss] only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Casumpang v. Int'l Longshoremen's & Warehousemen's Union, 269 F.3d 1042, 1060-61 (9th Cir. 2001) (citation and quotation marks omitted); Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).

A Rule 12(b)(1) motion may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack such as the case here, the court may dismiss a complaint when the allegations of and documents attached to the complaint are insufficient to

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confer subject-matter jurisdiction. See Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). When determining whether subject-matter jurisdiction exists, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996).

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) dismissal is proper when there is either a "'lack of a cognizable legal theory or the absence of sufficient facts alleged.'" UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the

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complaint -- "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.").

C. Pro Se Pleadings

Because Plaintiff is proceeding pro se, the court liberally construes his Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court also recognizes that "[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). A court may, however, deny leave to amend where further amendment would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for,

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among other reasons "repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment").


Plaintiff's claims against Defendant concern the alleged improper assessment and collection of taxes. The authorities referenced in the Complaint to support both subject-matter jurisdiction and Plaintiff's claims include: 18 U.S.C. §§ 4, 872, 1341; 26 U.S.C. §§ 3402, 6331, 7214, 7422, 7433 (as amended by the IRS Restructuring and Reform Act of 1998 ("RRA")), 7491, 7802, 7804; 28 U.S.C. § 1346(a)(1); the Federal Tort Claim Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80; 42 U.S.C. §§ 1981-83; the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; and 26 C.F.R. § 301.6330. See Compl. at PageID # 6-8, 11, 14, 21-22, 32.

Defendant seeks dismissal of Plaintiff's claims, arguing that Plaintiff failed to establish subject-matter jurisdiction and/or failed to state a plausible claim for relief. The court agrees. For the reasons discussed below, Plaintiff has failed to establish that Defendant waived its sovereign immunity or that jurisdiction is proper under these authorities.



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A. Legal Standard

To exercise subject-matter jurisdiction over an action against the federal government, there must be "a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver." United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citations omitted). See FDIC v. Meyer, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); see also Dunn & Black P.S. v. United States, 492 F.3d 1084, 1088-89 (9th Cir. 2007) (explaining that an action "must be dismissed" if a plaintiff fails to establish that his action "falls...

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