Jones v. I.R.S., 4:01CV3067.

• Decision Date: 04 June 2002
• Docket Number: No. 4:01CV3067.,4:01CV3067.
• Citation: 216 F.Supp.2d 955
• Parties: Marvel JONES, Plaintiff, v. INTERNAL REVENUE SERVICE, Rodney J. Strickland, Chief, Customer Service Branch, Dennis Parizek, Chief, Customer Service Center, Mr. Corbridge, unknown position at IRS, Richard M. Creamer, Commissioner, and Known and Unknown Defendants, Defendants.
• Court: U.S. District Court — District of Nebraska

Page 955

216 F.Supp.2d 955

Marvel JONES, Plaintiff, v. INTERNAL REVENUE SERVICE, Rodney J. Strickland, Chief, Customer Service Branch, Dennis Parizek, Chief, Customer Service Center, Mr. Corbridge, unknown position at IRS, Richard M. Creamer, Commissioner, and Known and Unknown Defendants, Defendants.

No. 4:01CV3067.

United States District Court, D. Nebraska.

June 4, 2002.

Marvel Jones, Tecumseh State Prison, Tecumseh, NE, Pro Se.

Paul D. Boeshart, Assistant U.S. Attorney, Lincoln, NE, Robert D. Metcalfe, U.S. Dept. of Justice, Tax Division, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

URBOM, Senior District Judge.

This matter is before me on the following motions: (1) filing no. 20, the Motion for Appointment of Counsel filed by the plaintiff, Marvel Jones; (2) filing no. 21, the Motion to Consolidate Both Cases, in which Mr. Jones seeks to consolidate the above-captioned litigation with a companion case, Jones v. Nebraska Department of Correctional Services, et al., Case No. 4:01CV3068, presently pending in this district; and (3) filing no. 27, the Federal Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, filed by the defendants, Internal Revenue Service ("IRS") and individual employees and officials of the IRS. Mr. Jones has filed the Plaintiff's Response to Federal Defendant[s'] Motion to Dismiss or for Summary Judgment (filing no. 33).

BACKGROUND

The plaintiff, an inmate in the custody of the Nebraska Department of Correctional Services ("DCS"), is proceeding pro se and in forma pauperis. In his complaint, the plaintiff seeks compensatory, punitive, and treble damages as well as return of his tax refund check in the amount of $617.15 for the 1999 tax year.

Employed by a private company during 1998 and 1999, the plaintiff filed a federal income tax return for the year 1999, requesting a refund in the amount of $617.15. The refund derived in part from the plaintiff's claim to an earned income credit ("EIC") in the amount of $308. See 26 U.S.C. § 32 (establishing EIC tax credit for eligible taxpayers).

Initially, the IRS issued a refund check for $617.15, and the plaintiff received notice from prison officials regarding receipt of the check. However, before he could access the funds, the plaintiff received a message from the prison Finance Manager that the IRS had sought return of the refund check, and that the prison accounting office had returned the check. During his prison grievance proceedings, the plaintiff learned that the prison has an agreement with the IRS to allow time for the IRS to review tax refunds received by inmates. The plaintiff contends that the IRS's interception of his check, without affording him prior notice and a hearing, deprived him of due process, and subsequent delays in processing his refund violated internal regulations of the IRS.

ELIGIBILITY FOR EIC

By prior Order (filing no. 13 at 2), I upheld the IRS's view that 26 U.S.C. § 32(c)(2)(B)(iv) rendered the plaintiff ineligible for the EIC in 1999. Section 32(c)(2)(B)(iv) states:

32(c) Definitions and special rules.—For purposes of this section—...

(2) Earned income.—

(A) The term "earned income" means— ...

(B) For purposes of subparagraph

(A)-...

(iv) no amount received for services provided by an individual while the individual is an inmate at a penal institution shall be taken into account....

The statutory language clearly states that compensation received by an inmate as payment for services is not considered "earned income" for purposes of the EIC. The plaintiff was an inmate at a penal institution during the 1998 and 1999 tax years.

APPOINTMENT OF COUNSEL

In Davis v. Scott, 94 F.3d 444, 447 (8th Cir.1996), the Eighth Circuit Court of Appeals discussed appointment of counsel in civil cases:

"Indigent civil litigants do not have a constitutional or statutory right to appointed counsel." .... The trial court has broad discretion to decide whether both the plaintiff and the court will benefit from the appointment of counsel, taking into account the factual and legal complexity of the case, the presence or absence of conflicting testimony, and the plaintiff's ability to investigate the facts and present his claim.

(Citations omitted.) Accord Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.1998):

A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case .... When determining whether to appoint counsel for an indigent civil litigant, the district court considers relevant factors such as the complexity of the case, the ability of the indigent litigant to investigate the facts, the existence of conflicting testimony, and the ability of the indigent to present his claim.

Other federal courts consider the same factors. See, e.g., Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir.2001): "Pursuant to 28 U.S.C. § 1915(e)(1), the court may appoint an attorney to represent a litigant in federal court, but there is no automatic right to appointment of counsel in a civil rights case .... In evaluating whether the appointment of counsel is proper, the district court considers the type and complexity of the case, the litigant's ability to investigate and present the case, and the level of skill required to present the evidence." In light of those considerations and the disposition of this case, I will deny filing no. 20, the plaintiff's motion for appointment of counsel.

CONSOLIDATION

I agree with the Order entered by Magistrate Judge Kathleen A. Jaudzemis in the companion Case No. 4:01CV3068, Jones v. Nebraska Department of Correctional Services, et al., denying the plaintiff's motion to consolidate Case Nos. 4:01CV3067 and 4:01CV3068. In my view, the two cases present distinct issues of law and fact, so that consolidation pursuant to Fed.R.Civ.P. 42(a) would not serve the interests of convenience and economy or avoid unnecessary cost or delay. Therefore, I will deny filing no. 21.

MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

The defendants moved for dismissal or summary judgment on the basis of Fed. R.Civ.P. 12(b)(1) and (6) (lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted). Upon review of the record and the parties' arguments, I believe that this case should be dismissed for lack of subject matter jurisdiction. In making that determination, I have considered all of the evidentiary material attached by the plaintiff to his complaint as well as the pleadings and the applicable law.

SOVEREIGN IMMUNITY

Suit Against the IRS

A suit against the IRS is "one against the United States." Coolman v. U.S. I.R.S., 117 F.Supp.2d 943, 945-46 (D.Neb.2000), aff'd, 242 F.3d 374, 2000 WL 1678868 (8th Cir. Nov 09, 2000) (unpublished). See also Carelli v. IRS, 668 F.2d 902, 904 (6th Cir.1982) ("Although the appellant named the IRS as defendant in his complaint, we treat this action as a suit against the United States.").

"Under the doctrine of sovereign immunity, the United States is immune from suit unless it consents to be sued .... This consent must be unequivocally expressed in statutory text ... and the scope of a sovereign immunity waiver is strictly construed in favor of the sovereign." Miller v. Tony and Susan Alamo Foundation, 134 F.3d 910, 915 (8th Cir.1998).

Federal Defendants in Their Official Capacity

A suit against an official of the federal government in the officer's official capacity is considered a suit against the United States. Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir.2000), cert. denied, 531 U.S. 898, 121 S.Ct. 231, 148 L.Ed.2d 165 (2000); Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir.1998). See also Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978): "Official capacity suits ... `generally represent only another way of pleading an action against an entity of which an officer is an agent.'"

It is well established that, absent an express waiver, the doctrine of sovereign immunity bars a plaintiff's claim for money damages against the United States, its agencies, and its officers in their official capacities. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). "Sovereign immunity is jurisdictional in nature." FDIC v. Meyer, 510 U.S. at 475, 114 S.Ct. 996, citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction").

The jurisdictional bar of sovereign immunity operates when a suit threatens to impose liability on the United States for money or property or to engender some form of coercive injunctive relief. See, e.g., Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963): "The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.' Larson v. Domestic & Foreign Corp., supra, 337 U.S. [682] at 704[, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)]; Ex parte New York, 256 U.S. 490, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921)."

Federal Tort Claims Act

Although the United States has consented to suit under the Federal Tort Claims Act ("FTCA"), the FTCA does not apply to this case. Under the FTCA, the United States waives its sovereign immunity for damages claims regarding "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his...