Landry v. Duncan
| Decision Date | 09 March 1989 |
| Docket Number | No. 87-4031,87-4031 |
| Citation | 872 F.2d 428 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Theodore W. LANDRY, Plaintiff/Appellant, v. Jean DUNCAN; Carrol Lennard; Richard Munn, Defendants/Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before SCHROEDER, POOLE and NELSON, Circuit Judges.
Since 1979 the appellant Landry has argued that he is not required to pay income taxes to the United States or to the state of Oregon because he is a "patented, natural and free man." Neither the Internal Revenue Service (IRS) nor the Oregon Department of Revenue (ODR) agree with Landry. These disagreements led the IRS and the ODR to assess tax deficiencies against Landry and to attempt to collect these deficiencies through a series of procedures that culminated in the seizure and sale of Landry's home by the IRS. On February 5, 1987 Landry filed a complaint in the United States District Court against Jean Duncan and Carrol Lennard, two IRS employees, and against Richard Munn, an ODR employee. Landry sought damages from the individual appellees pursuant to 42 U.S.C. Sec. 1983 for alleged violations of his right to due process. 1 The district court granted the appellees' motion to dismiss for failure to state a claim upon which relief may be granted. Landry appealed. A dismissal for failure to state a claim under F.R.C.P. 12(b)(6) is reviewable de novo. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983).
The district court correctly dismissed the appellant's claim against the federal defendants for three reasons. First, the appellant's suit was subject to dismissal on sovereign immunity grounds. Second, even if the suit is construed as a claim for damages against the individual federal defendants, it does not state a cognizable cause of action under 42 U.S.C. Sec. 1983 or as a Bivens -type damages action. Third, the individual defendants' qualified immunity shields them from liability for civil damages unless their conduct violated clearly established statutory or constitutional rights. The appellant did not allege that the IRS employees did anything other than perform their statutory duties in an appropriate manner.
1. Landry's claim is barred under the doctrine of sovereign immunity. United States v. Sherwood, 312 U.S. 584 (1941). Although Landry named individual IRS employees as defendants, his action must be considered a claim against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). The fact that Landry named individual IRS employees does not preclude the application of sovereign immunity. Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir.1982). Landry does not allege that the IRS employees were acting other than in their official capacities; he does not allege that the United States waived sovereign immunity as regards this action or that this action falls under any waiver set forth in the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq.
2(a). Even if the doctrine of sovereign immunity did not apply, Landry's suit would not state a claim against the IRS employees. Ordinarily section 1983 actions cannot be maintained against either the United States or its officials. Stonecipher v. Bray, 653 F.2d 398 (9th Cir.1981). An exception may occur when a federal defendant acts in conspiracy with state officials under color of state law. "[W]hen federal officials are engaged in a conspiracy with state officials to deprive constitutional rights, the state officials provide the requisite state action to make the entire conspiracy actionable under section 1983." Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir.1979), cert denied, 446 U.S. 754 (1980). However, Landry's vague allegations of a conspiracy between the IRS employees and the ODR employee are not sufficient to satisfy this burden. See Gibson v. United States, 781 F.2d 1334 (9th Cir.1986); Ivey v. Board of Regents, 673 F.2d 266 (9th Cir.1982).
2(b). Landry's suit does not satisfy the requirements of a Bivens' action. See Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). In order to state a Bivens cause of action in this setting, Landry's complaint would have to allege a cognizable constitutional wrong that cannot be rectified by procedures set forth in the Internal Revenue Code. Cameron v. Internal Revenue Service, 773 F.2d 126, 129 (7th Cir.1985). Cf. Schweiker v. Chilicky, 108 S.Ct. 2460 (1988) ().
3. With respect to allegations of unconstitutional conduct, federal officials have available a defense of qualified immunity. They cannot be held liable for "mere mistakes in judgment," Butz v. Economou, 438 U.S. 478, 507 (1978), but only for conduct that they "knew or reasonably should have known" would violate the constitutional rights of the plaintiff or actions taken with the malicious intention to cause a deprivation of constitutional rights. Id. at 498 (quoting Wood v. Strickland, 420 U.S. 30, 322 (1975)). Landry's complaint does not allege any such conduct or actions the part of the IRS employees. See Hoffman v. Haldin, 268 F.2d 280 (9th Cir.1959).
The district court properly dismissed Landry's action against the ODR employee for two reasons. First, it is barred by the Eleventh Amendment. Second, it fails to state a claim under section 1983.
1. The alleged acts or omissions of Richard Munn fell within the scope of his official capacity as Director of the ODR, an arm of the state of Oregon. An unconsenting state is immune from suits brought in federal court by its own citizens as well as by citizens of another state. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
2. In an action for damages against a public official under section 1983, a plaintiff must allege highly specific facts in order to defeat a motion to dismiss. Agnew v. City of Compton, 239 F.2d 226, 229 (9th Cir.1956), cert. denied, 353 U.S. 959 (1957). Landry's brief makes broad and conclusory allegations that fail to approach this standard. Landry repeatedly asserts that he was denied due process. However, the ODR employee's actions were performed pursuant to state law and Landry received ample opportunity to contest the underlying Oregon tax assessment prior to the time it became final. Landry chose not to pursue the full range of due process offered by the state of Oregon through its administrative and judicial remedies offered to those with...
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