Del Elmer; Zachay v. Metzger, Civ. 96-2112-B(CM).

• Decision Date: 12 March 1997
• Docket Number: No. Civ. 96-2112-B(CM).,Civ. 96-2112-B(CM).
• Citation: 967 F.Supp. 398
• Court: U.S. District Court — Southern District of California
• Parties: DEL ELMER; ZACHAY, Plaintiff, v. Reinhold METZGER, et al., Defendants.

967 F.Supp. 398

DEL ELMER; ZACHAY, Plaintiff, v. Reinhold METZGER, et al., Defendants.

No. Civ. 96-2112-B(CM).

United States District Court, S.D. California.

March 12, 1997.

Del Elmer, Zachay, San Diego, CA, pro se.

Jeffrey R. Meyer (DOJ-Tax Division), Washington, DC, for Federal Defendants.

Reinhold Metzger, San Diego, CA, pro se.

BREWSTER, District Judge.

ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND

This matter came on regularly for hearing on defendants' motions to dismiss. After careful consideration of the papers which have been filed, the Court hereby GRANTS defendants' motions to dismiss without leave to amend.

I. Background

The gravamen of plaintiff's complaint is that his property was seized when an Internal Revenue Service Officer, defendant McArdle, levied on payments owing from defendant Reinhold Metzger ("Metzger") to plaintiff for payment of back taxes. Pursuant to the tax levy, Metzger paid the IRS rather than plaintiff. Plaintiff contends that the tax debt is not valid and that he was not named on the debt instrument.

Metzger allegedly borrowed $70,000 from plaintiff which was secured by a note on a leasehold interest in Keystone Trailer Park. A trust deed in favor of plaintiff was allegedly filed on May 17, 1982 with repayment to be on a 15 year schedule payable at $659.48 per month. Metzger made payments until April of 1993 when he stopped. Apparently, Metzger received a letter from defendant McArdle of the Internal Revenue Service ("IRS") telling him to send all future payments to the IRS. Complaint ¶ 28. As a result of this seizure of funds, plaintiff was not able to make his mortgage payments on property he owned, and it was foreclosed on. Complaint ¶ 45.

Plaintiff alleges various statutory and constitutional violations based on this seizure of his funds, including: (1) his property was seized and sold in violation of the Fourth Amendment; (2) he was denied due process of law under the Fifth Amendment because there was no presentment of the debt to a Grand Jury, no indictment and no trial prior to his property being seized; (3) he was denied his Seventh Amendment right to a jury trial before his property was seized; (4) by forcing him to labor to pay off the debt, he was subjugated to the status of a peon in violation of the Thirteenth Amendment. Plaintiff alleges 16 statutory and constitutional violations in total, all of which are based on the same facts.

Plaintiff alleges a cause of action against IRS Officer McArdle because "officer of the court gives rise to an action under Title 42 USCA 1986 for `knowledge' and `neglect' and `perjury of oath' under Title 18 USCA 1621, as the officer swore to defend and protect the citizens of the State, then with want of care, violated that oath and were enriched by the State for their actions to violate a citizen's rights."

Plaintiff alleges four causes of action all of which are based on alleged violations of the Thirteenth Amendment and 42 U.S.C. §§ 1994, 1986 & 1985. Plaintiff seeks $959,428.00 in compensatory and punitive damages, a return of all property seized, declaratory relief that McArdle has no right to collect a debt from him, declaratory relief that defendants committed various criminal acts, and criminal indictments against defendants based on 18 U.S.C. §§ 2, 4, 241, 242, 2112, 872, 1001, 1621, 1622, 1963, 1964, 3623, and 1581.

Defendants McArdle and Metzger have filed motions to dismiss. Plaintiff has not filed an opposition, however, his complaint states:

Dispositive motions filed in this case are a fraud upon the court and the plaintiff, and will give rise to FRCP 12(b)(1)(2)(6)(7), as to those dispositive motions.

Complaint ¶ 2.

II. Discussion

Defendants move to dismiss this action on three grounds: (1) insufficiency of service of process, (2) failure to state a claim upon which relief can be granted, and (3) lack of subject matter jurisdiction.

A. Insufficiency of Service of Process

1. Governing Law

Fed.R.Civ.P. 4(i) provides that:

(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney ...

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, ...

(2) Service upon an officer, agency or corporation of the United States shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons and of the complaint by registered or certified mail to the officer agency or corporation.

Fed.R.Civ.P. 4(m) provides:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

"A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed. R.Civ.P. 4." Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986), modified on other grounds, 807 F.2d 1514, cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982)).

2. Discussion

As an initial matter, plaintiff has improperly named an individual employee of the Internal Revenue Service as a defendant. McArdle is being sued in his official capacity for federal tax collection activities. "B. McArdle at all times relevant to this complaint, was acting as an official, employed, compensated, enriched, and rewarded as Revenue Agent, a full-time employee of the Internal Revenue Service[.]" Complaint ¶ 29¹ See Decker v. Richardson, 920 F.Supp. 141, 144 (D.Or.1996) (acts of federal officials in filing liens and levies and collecting taxes within scope of official responsibilities). A suit against officers and employees of the United States in their official capacity is essentially a suit against the United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). For this reason, whether service of process has been properly effected is analyzed under the rules for service of process on the United States. See Fed.R.Civ.P. 4(i).

Plaintiff left a copy of the summons and complaint at McArdle's place of business, but did not serve either the U.S. Attorney's Office or the Attorney General's Office.² For this reason, service was improper. Defendants' motion to dismiss for improper service of process is GRANTED.

B. Failure to State a Claim Upon Which Relief Can Be Granted

1. Governing Law

A motion to dismiss for failure to state a claim tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed without leave to amend if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).

2. Bivens Claims

Plaintiff alleges constitutional violations under the Fourth, Fifth, Seventh, Thirteenth and Fourteenth Amendments pursuant to 42 U.S.C. §§ 1983, 1985, and 1986.³ Plaintiff cannot maintain a § 1983 suit against Metzger because he is not a state actor. Plaintiff cannot maintain a § 1983 suit against McArdle because he is a federal official. Section 1983 only entitles plaintiffs to relief against state actors, not federal actors. American Science & Engineering, Inc. v. Califano, 571 F.2d 58 (1st Cir.1978); Chodos v. FBI, 697 F.2d 289 (2nd Cir.), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983).

It appears that plaintiff is actually alleging a Bivens action against McArdle. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that violation of a constitutional right "by a federal agent acting under color of his authority" gives rise to a cause of action for damages. Plaintiff cannot maintain a Bivens action against McArdle, however, because he has not alleged that he took any actions in his individual capacity. In Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir.1996), the Ninth Circuit stated that "a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity." (quoting Daly-Murphy v. Winston, 837 F.2d 348 (9th Cir.1987)). Plaintiff's complaint states that "B. McArdle at all times relevant to this complaint, was acting as an official, employed, compensated, enriched, and rewarded as Revenue Agent, a full-time employee of the Internal Revenue Service[.]" Complaint ¶ 29. In effect, plaintiff's suit is against the United States, and for the reasons addressed in Section C below, the United States has not waived its sovereign immunity to suits challenging its actions in levying on property to collect taxes.

Moreover, even if the Court were to assume that plaintiff was proceeding against McArdle in his individual capacity, plaintiff has failed to allege any conduct on the part of McArdle as the basis for constitutional rights violations other than tax collection activities. In Wages v. I.R.S., the Ninth Circuit held that it has "never recognized a constitutional violation arising from the collection of taxes." Wages, 915 F.2d at 1235. The rationale for this rule is that "the...