Rosado v. Curtis

• Decision Date: 27 February 1995
• Docket Number: No. 94-0059-CIV-ORL-18.,94-0059-CIV-ORL-18.
• Citation: 885 F. Supp. 1538
• Parties: Elliott ROSADO, Omega Farris, Sherry Farris, & Gary Farris, Plaintiffs, v. Joseph V. CURTIS, Patricia E. Dorman, Roslyn A. Russell, Joe F. Roach, Margaret A. Weiss, Orland D. Smith, Dale F. Hart, John Doe # 1-10, & Jane Doe # 1-10, Defendants.
• Court: U.S. District Court — Middle District of Florida

885 F. Supp. 1538

Elliott ROSADO, Omega Farris, Sherry Farris, & Gary Farris, Plaintiffs, v. Joseph V. CURTIS, Patricia E. Dorman, Roslyn A. Russell, Joe F. Roach, Margaret A. Weiss, Orland D. Smith, Dale F. Hart, John Doe # 1-10, & Jane Doe # 1-10, Defendants.

No. 94-0059-CIV-ORL-18.

United States District Court, M.D. Florida, Orlando Division.

February 27, 1995.

Elliott Rosado, Clermont, FL, pro se.

Omega Farris, Clermont, FL, pro se.

Sherry Farris, Clermont, FL, pro se.

Gary Farris, Clermont, FL, pro se.

Robert L. Welsh, U.S. Dept. of Justice, Tax Div., Washington, DC, for Joseph V. Curtis, Patricia E. Dorman, Roslyn A. Russell, Orlan Smith, Margaret A. Weiss and Dale F. HART.

Robert E. Miller, Miller & Grace, P.A., Altamonte Springs, FL, for Joe F. Roach.

Michael A. Cauley, U.S. Attorney's Office, Tampa, FL, for John E. Steele.

ORDER

G. KENDALL SHARP, District Judge.

Elliott Rosado, Omega Farris, Gary Farris, and Sherry Farris (plaintiffs) bring this action pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988, 18 U.S.C. §§ 872, 876, and 1001, and 26 U.S.C. § 7214 against Joseph V. Curtis (Curtis), Patricia E. Dorman (Dorman), Roslyn A. Russell (Russell), Joe F. Roach (Roach), Margaret A. Weiss (Weiss), Orland D. Smith (Smith), Dale F. Hart (Hart), and various John Does and Jane Does, alleging violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs also raise claims under state law. Curtis, Dorman, Russell, Roach, Weiss, Smith, and Hart (defendants) filed a motion to dismiss, or in the alternative, motion for summary judgment. Plaintiffs responded in opposition to the motion. Based on a review of the case file and relevant law, the court grants summary judgment in favor of defendants.

I. Facts

Curtis, Dorman, Russell, Weiss, Smith and Hart are employees of the Internal Revenue Service (IRS). In April of 1992, Curtis, a revenue officer, was assigned the task of securing the delinquent tax liabilities of Omega Farris and Sherry Farris. In accordance with his assignment, Curtis caused to be filed Notices of Federal Tax Lien with the Clerk of Circuit Court of Lake County, Florida and with the County Comptroller of Orange County, Florida on or about April 30, 1992, May 4, 1992, and May 11, 1992. In addition, on May 4, 1992, Curtis issued a Notice of Intent to Levy to Omega Farris and Sherry Ferris with regard to their tax liabilities. On June 24, 1992, Curtis seized the personal residence of Omega Farris and Sherry Farris located at 12737 Monte Vista Road, Clermont, Florida and personally served a Notice of Seizure on Sherry Farris with regard to the residence which was seized.

On August 6, 1992, Curtis presented an Application of Revenue Officer to Enter Premises to Effect Levy with a memorandum in support to Magistrate Judge John E. Steele (Magistrate Judge Steele) and executed an affidavit in support of the application before Magistrate Judge Steele. Subsequently, Magistrate Judge Steele issued an Order for Entry on Premises to Effect Levy which allowed Curtis or other designated IRS personnel to enter the premises at 12737 Monte Vista Road, Clermont, Florida "and to make such search as is necessary in order to levy and seize." (Doc. 173, Ex. 4.) On August 11, 1992, Curtis, three revenue officers, and three IRS special agents went to the residence located at 12737 Monte Vista Road. After a locksmith opened the door, Curtis, the revenue officers, and the IRS special agents entered the house, seized certain items, and inventoried the items seized. While Curtis and the other officers were at the residence, Omega Farris and Sherry Farris returned to the residence. Subsequently, on August 11, 1992, Curtis seized a truck which belonged to Omega Farris.

Sometime later, Omega Farris and Sherry Farris filed for bankruptcy. After the IRS obtained an order lifting the automatic stay in the bankruptcy case, the IRS sold Omega Farris's truck on January 27, 1993. On February 17, 1993, the IRS sold the residence to Roach. The Deed of Real Estate which deeded the property to Roach was signed by Russell as Assistant Chief of the Collection Division of the IRS located in Jacksonville, Florida. On January 29, 1993, the personal property which had been seized was sold at public auction. The proceeds from the sale of truck, residence, and personal property were applied to the delinquent tax liabilities of Omega Farris and Sherry Farris.

II. Legal Discussion

A. Standard for Summary Judgment

Summary judgment is authorized if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The moving party may rely solely on his pleadings to satisfy this burden. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53; Fed.R.Civ.P. 56(c). "There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted).

B. 18 U.S.C. §§ 872, 876 and 1001 and 26 U.S.C. § 7214

Plaintiffs apparently bring this action pursuant to sections 872, 876, and 1001 of Title 18 of the United States Code. However, the court has been unable to locate authority which would imply a civil cause of action for violations of these federal criminal code provisions. Therefore, a private right of action does not exist for plaintiffs' claims brought under §§ 872, 876, and 1001. See Federal Sav. and Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir.1987) (finding no basis to imply a civil cause of action from 18 U.S.C. § 1001); Williams v. McCausland, 791 F.Supp. 992 (S.D.N.Y.1992). In addition, plaintiffs may not bring a claim for damages pursuant to 26 U.S.C. § 7214 until after a criminal conviction under the section. See Brunwasser v. Jacob, 453 F.Supp. 567, 572-73 (W.D.Pa.1978), aff'd, 605 F.2d 1194 (3d Cir.1979).

C. 42 U.S.C. § 1983

Plaintiffs bring this action pursuant to § 1983. Defendants assert that plaintiffs' complaint fails to state a claim for which relief can be granted under § 1983. To maintain an action under § 1983, plaintiffs must show a deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States and that the conduct complained of was committed by a person acting under color of state law. Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991). Because plaintiffs' action involves federal officials acting under color of federal law, plaintiffs fail to state a claim under § 1983. See Walker v. Secretary of the Treasury, I.R.S., 713 F.Supp. 403, 409 (N.D.Ga.1989); Church of Human Potential, Inc. v. Vorsky, 636 F.Supp. 93, 95-06 (D.N.J.1986) (stating that action of IRS employee taken pursuant to federal law cannot form the basis of a § 1983 claim; and finding that the mere filing of a federal tax lien in a state office does not constitute state action because the state is merely a passive agent of the federal government in maintaining records of such liens); Young v. I.R.S., 596 F.Supp. 141, 145 (N.D.Ind.1984) (noting that actions of IRS officials, even if beyond the scope of their officials duties, are acts done under color of federal law and not state law, thus making § 1983 inapplicable); Komasinski v. I.R.S., 588 F.Supp. 974, 978 (N.D.Ind.1984) (stating that IRS employees involved in assessment of penalty and seizure of van were acting under federal law, and thus, holding § 1983 inapplicable).

D. 42 U.S.C. §§ 1985 and 1986

Plaintiffs also bring this action pursuant to 42 U.S.C. §§ 1985 and 1986. Although the complaint does not indicate which subsection within § 1985 applies to plaintiffs' claim, plaintiffs allege a conspiracy to deprive them of their property. Consequently, the court construes plaintiffs' complaint as an attempt to state a claim under § 1985(3). See 42 U.S.C. § 1985(3) (1988) (referring to conspiracy to deprive persons of rights or privileges). However, plaintiffs fail to sufficiently allege the existence of a conspiracy to interfere with civil rights or present facts to support such a claim. In addition, plaintiffs fail to allege a class-based discriminatory motive on the part of the conspirators. Accordingly, plaintiffs fail to state a claim for relief under § 1985(3). See Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir.1992) (identifying the elements of a cause of action under § 1985(3) to include (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws; and ...