Richcreek v. Grecu, IP 84-710-C

• Citation: 612 F. Supp. 111
• Decision Date: 17 June 1985
• Docket Number: No. IP 84-710-C,IP 84-779-C and IP 84-1686-C.,IP 84-710-C
• Parties: Michael A. RICHCREEK v. George GRECU, et al.
• Court: U.S. District Court — Southern District of Indiana

612 F. Supp. 111

Michael A. RICHCREEK v. George GRECU, et al.

Nos. IP 84-710-C, IP 84-779-C and IP 84-1686-C.

United States District Court, S.D. Indiana, Indianapolis Division.

June 17, 1985.

COPYRIGHT MATERIAL OMITTED

Michael A. Richcreek, pro se.

Peter Sklarew, Trial Atty., Tax Div., Dept. of Justice, Washington, D.C., Charles Goodloe, Asst. U.S. Atty., Indianapolis, Ind., for federal defendants.

Richard M. Knoth of Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., for non-federal defendants.

STECKLER, District Judge.

This matter is before the Court on defendants' motions to dismiss and motions for costs and attorney fees in these three related cases. Defendants also have moved for a permanent injunction in Cause No. IP 84-1686-C. Plaintiff has failed to respond.

The Court first notes that plaintiff has filed an appeal of the Court's order granting a preliminary injunction in Cause No. IP 84-1686-C. However, the interlocutory appeal does not deprive this Court of jurisdiction and therefore, the Court can rule on defendants' pending motions. Thomas v. Board of Ed., Granville Cent. Sch. Dist., 607 F.2d 1043, 1047 n. 7 (2d Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir.1976).

Plaintiff has filed four very similar lawsuits. In IP 84-710-C plaintiff is suing two Delco payroll administrators for withholding federal and state income taxes and Social Security taxes from plaintiff's wages. Cause Number IP 84-779-C is against the same Delco employees and adds Internal Revenue Service (IRS) employees as defendants. Plaintiff challenges the tax assessment and levy made against plaintiff by the IRS. In IP 84-1187-C plaintiff named the same defendants and repeated many of the same allegations but added the attorneys who had appeared in the other case, including government attorneys, and added the Honorable James E. Noland. On August 20, 1984, the Honorable Sarah Evans Barker dismissed that cause (IP 84-1187-C) sua sponte. She also called plaintiff's attention to Rule 11 and the possibility of sanctions if plaintiff filed another frivolous suit.

On December 26, 1984, plaintiff filed IP 84-1686-C against many of the same defendants and added Magistrate Endsley and Judge Barker as defendants. Judge Noland was not named. In this complaint plaintiff states he is suing defendants in their private capacities for violating his constitutional rights and invokes 18 U.S.C. § 242 and 42 U.S.C. § 1983. He alleges that defendants have conspired to deprive him of his constitutional rights, including his right to a jury trial, by entering appearances, moving to dismiss the actions, and, as to Magistrate Endsley and Judge Barker, by ruling against plaintiff. He also accuses Judge Barker of sedition and treason, alleging that she has violated her oath of office. Plaintiff seeks damages of $5,314,510.12 from each defendant.

On March 1, 1985, after a hearing at which plaintiff failed to appear, the Court granted defendants' motion for a preliminary injunction. Plaintiff is currently enjoined from seeking, without prior leave of Court, the intervention of any court in any proceeding, either directly or indirectly, against any persons, including the judge and court personnel, who have or are participating in this lawsuit.

I. Cause Numbers IP 84-710-C and IP 84-779-C.

a. Nonfederal defendants.

Plaintiff is suing defendants Grecu and Blakesley for withholding federal income tax, FICA tax, and Indiana state income tax from plaintiff's salary and is suing these same two defendants plus defendant Keller for withholding monies pursuant to a Notice of Levy from the Internal Revenue Service. Plaintiff contends that he has been deprived of his property without due process of law. He alleges that the Internal Revenue Code is not law and that the IRS has no authority to levy against his wages because he is exempt from 26 U.S.C. §§ 3401(c) and 6331(a).

Having considered the nonfederal defendants' motions in these two actions, the Court finds that plaintiff's arguments are frivolous and without any legal basis and that defendants' motions should be granted.

Plaintiff attempts to bring these causes under 18 U.S.C. § 241 and 242 and 42 U.S.C. § 1983. In IP 84-779-C he also has asserted that all defendants have violated 42 U.S.C. § 1985. Neither 18 U.S.C. § 241 nor 242 create a civil cause of action. Ivey v. Bodfish, 54 A.F.T.R.2d 84-5709 (N.D.Ind.1984); United States v. City of Philadelphia, 482 F.Supp. 1248, 1260-61 (E.D.Pa.1979), aff'd, 644 F.2d 187 (1980). Thus, plaintiff cannot state a cognizable claim under these statutes. Nor can plaintiff state a claim under 42 U.S.C. § 1985(3). To state a claim under § 1985(3) a plaintiff must allege some racial or class based animus on the part of defendants, and plaintiff has failed to do so. See Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir.1976).

Section 1983 applies only to actions taken under color of state law; it does not govern federal tax collection procedures. See Edgar v. Inland Steel Co., 744 F.2d 1276, 1278 (7th Cir.1984); Stonecipher v. Bray, 653 F.2d 398, 401, 403 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982). Therefore, the nonfederal defendants cannot be liable under § 1983 unless they were acting under color of state law regarding state income tax. The Court need not address that issue, however, because the nonfederal defendants are exempt from liability to a taxpayer under both state and federal tax laws.

Congress has the power, under the Sixteenth Amendment, to collect income taxes. Baird v. C.I.R., 256 F.2d 918 (7th Cir.1958), aff'd, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959). The constitutionality of the Social Security tax is also well established. Steward Machine Company v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). The power to impose these taxes also includes prescribing the time and manner of how the taxes are to be collected and paid. Jacobs v. Gromatsky, 494 F.2d 513 (5th Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974).

Congress established the withholding procedures for collection of federal income tax in 26 U.S.C. § 3402. Section 3402(a) requires that "every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with the tables prescribed by the secretary." Under 26 U.S.C. § 3102(a), employers are required to withhold FICA tax also. Employers are not liable to the taxpayer for any amounts withheld. 26 U.S.C. § 3403. Thus, the actions of the defendants in withholding the plaintiff's federal taxes were lawful and in accordance with congressional mandate. Similarly, 26 U.S.C. § 6331 authorizes the collection of any person's tax liability by levy on all property, and 26 U.S.C. § 6332 relieves any one honoring the levy from liability to the taxpayer. Therefore, the nonfederal defendants are not liable to plaintiff for honoring the IRS Notice of Levy.

Indiana law also requires employers to withhold state income tax from employees' wages and exempts employers from any liability for doing so. Ind.Code § 6-3-4-8. Plaintiff has not set forth any specific facts from which the Court could even infer that this statute violates either the State or Federal Constitution. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 n. 18, 97 S.Ct. 619, 628 n. 18, 50 L.Ed.2d 530 (1977). Therefore, this claim must also be dismissed.

b. Federal defendants.

Plaintiff has named numerous employees of the IRS as defendants in Cause Number IP 84-779-C. He alleges that they failed to advise him of his collection rights, committed mail fraud, violated his rights to due process, equal protection, and a jury trial, used administrative processes to develop a criminal case against him, and violated 42 U.S.C. § 1983. However, a review of the complaint and attached exhibits reveals that plaintiff's real basis for the action is his contention that wages are not subject to federal income tax and that the IRS has erroneously assessed and collected a penalty from him for filing false W-4 statements. Therefore, the Court will not address the numerous allegations plaintiff has made.

Although plaintiff has named numerous IRS employees as defendants in their individual capacity, he has not alleged any facts from which the Court can infer that any of the federal defendants acted outside the scope of his or her official duties. It is also clear that any relief granted would expend itself on the public treasury or interfere with the public administration of the tax system. Therefore, the action is really against the United States. See Clark v. United States, 691 F.2d 837, 839-40 (7th Cir.1982); Richey v. Stewart, et al., 54 A.F.T.R.2d 84-5239 (S.D.Ind.1984).

It is well established that the United States may be sued only if it has consented to such suit by statute. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Clark, 691 F.2d at 839. Although sovereign immunity has been waived under 28 U.S.C. § 1346(a)(1), in order to allow a taxpayer to contest any internal revenue tax alleged to have been erroneously assessed or collected, the taxpayer must first have filed a claim for refund with the Secretary. 26 U.S.C. § 7422(a) Plaintiff has not alleged the filing of any such claim. Noncompliance with the statutory prerequisite deprives the Court of jurisdiction. Hampton v. United States, 206 Cl.Ct. 422, 513 F.2d 1234 (Ct. Cl.), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975).

Plaintiff may not bring his claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 either, because he has not alleged filing an administrative claim. Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972). Additionally, this Act does not apply to claims relating to the...