Ross v. Bolin
| Decision Date | 31 May 2022 |
| Docket Number | 1:21-cv-01753-JLT-SAB |
| Parties | DAVID R. ROSS, Plaintiff, v. NINA BOLIN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF SECOND AMENDED COMPLAINT (ECF No. 9)
David R. Ross (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis filed this action against Nina Bolin and Ursula Dean Operations Managers for the Department of Treasury, Internal Revenue Service (“IRS”) on December 10, 2021. (ECF No. 1.)
On May 2, 2022, Plaintiff filed a second amended complaint. (ECF No 9.) The second amended complaint is now before this Court for screening. Having considered the second amended complaint, as well as the Court's file, the Court issues the following screening order and findings and recommendations recommending that the second amended complaint be dismissed without leave to amend, for lack of jurisdiction and failure to state a claim, and that this action be dismissed.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fail[] to state a claim on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 (2007)). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
As a general rule, the Court must limit its review to the operative complaint and may not consider facts presented in extrinsic evidence. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Materials submitted as part of the complaint, however, are not “outside” the complaint and may be considered. Id.; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Moreover, the Court is not required to accept as true conclusory allegations which are contradicted by exhibits to the complaint. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). A plaintiff can also “plead himself out of a claim by including unnecessary details contrary to his claims.” Sprewell, 266 F.3d at 988. Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995).
While the instant screening order pertains only to the operative second amended complaint, which is “complete in itself without reference to the prior or superseded pleading, ” E.D. Cal. L.R. 220; Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012), the Court nonetheless finds a brief review of the various iterations of the complaint resulting from Plaintiff's prior attempts to amend is appropriate here, as it supports the instant findings and recommendations that dismissal of the second amended complaint is appropriate and granting further leave to amend is not warranted.
In the original complaint, Plaintiff alleged his Eighth and Fourteenth Amendment rights were violated when Defendants failed to take his inquiries seriously because he is an inmate, and failed to provide him the Economic Impact Payments (“EIPs”) to which he was entitled. The Court screened the complaint and found Plaintiff failed to allege sufficient facts to state a claim. (ECF No. 6.) More specifically, the Court noted that, to the extent he claimed to not receive EIPs because of his prisoner status, Plaintiff's claims were foreclosed pursuant to the class action judgment resulting from Scholl v. Mnuchin (Scholl I), 489 F.Supp.3d 1008, 1020 (N.D. Cal. 2020), appeal dismissed, No. 20-16915, 2020 WL 9073361 (9th Cir. Nov. 20, 2020) and Scholl v. Mnuchin (Scholl II), 494 F.Supp.3d 661 (N.D. Cal. 2020), as Plaintiff was a member of the Scholl class; moreover, the claims were untimely. (ECF No. 6 at 5-6.) Instead, the Court indicated Plaintiff needed to raise his claim through the tax code, pursuant to 26 U.S.C. § 7422(a), but noted that, even if the Court construed the complaint to assert a tax claim, Plaintiff failed to allege facts sufficient to establish jurisdiction and state a claim under that statute. (Id. at 7-8.)
On March 18, 2022, Plaintiff filed a first amended complaint, again claiming violations under the Eighth and Fourteenth Amendments and not the tax code. (ECF No. 7.) In screening the first amended complaint, the Court noted the Government was the proper defendant in a suit seeking tax refunds, not individual IRS employees; that a proper claim against the IRS must be asserted pursuant to the tax code, specifically under 26 U.S.C. § 7422; and that all other claims Plaintiff was attempting to assert - e.g., against individual IRS employees or constitutional violations pursuant to either 42 U.S.C. § 1983 or Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) - failed to state a cognizable claim as a matter of law. (ECF No. 8 at 4-5, 10-14.) Plaintiff was directed that any amended complaint must assert a claim against the Government pursuant to 26 U.S.C. § 7422, and allege sufficient facts to establish compliance with the jurisdictional requirements set forth under the tax code, which were also described in the Court's order. (Id. at 5-8.)
On May 2, 2022, Plaintiff filed his second amended complaint. (ECF No. 9.)
COMPLAINT ALLEGATIONS[1]
The second amended complaint is properly asserted against the Government. However, instead of asserting a claim under 26 U.S.C. § 7422, as directed (twice) by the Court, Plaintiff now seeks to assert claims for unspecified constitutional violations pursuant to Bivens. (ECF No. 9.)
Plaintiff remains a state prisoner at Correctional Training Facility. (Id. at 7.) Plaintiff addresses all three EIPs identified by the Court in its prior screening order.[2] Plaintiff alleges his first EIP for $1, 200 was deposited “into an unknown account, allowing someone [Plaintiff] did not know to have access to [his EIP] and have access to [his] social security number illegally.” (ECF No. 9 at 7 (internal quotations omitted).) Thus, although the first EIP was purportedly paid out, Plaintiff never received it. Plaintiff submitted an IRS form 3911 to start a legal trace to find the missing payment, as instructed by the IRS. (Id. at 7, 9.) He also timely submitted his 1040 tax return on November 13, 2020. (Id. at 10.) And Plaintiff sent a letter to the IRS noting his payment was deposited into the wrong account and renewing his request for assistance. (Ex. 7, ECF No. 9 at 18.) Plaintiff claims this completed the administrative process. (Id. at 7, 8.) Plaintiff alleges he periodically receives letters indicating additional time is required to address his inquiry, but he has never received a substantive response. (Id. at 7; Ex. 4, ECF No. 9 at 15; Ex. 5, ECF No. 9 at 16; Ex. 6, ECF No. 9 at 17.) Further, Plaintiff claims the IRS knew the $1, 200 was deposited into the wrong account, but still failed to correct the situation. (Id. at 7.)
Plaintiff alleges he never received the second EIP for $600, and wrote a letter to the IRS about the missing payment. (Id. at 7, 9, 18.) Plaintiff does not allege further facts about this EIP.
Plaintiff concedes he received the third EIP for $1, 400, as reflected in his inmate trust account statement. (Id. at 10; Ex. 3, ECF No. 9 at 14.)
Finally, Plaintiff alleges the IRS has similarly failed to address other inmates' claims regarding missing EIPs, specifically identifying inmate Anthony Sharp as an example, [3] and contends this demonstrates the IRS is deliberately discriminating against Plaintiff because he is incarcerated. (ECF No. 9 at 8.)
It appears the remedy Plaintiff seeks is recovery of certain tax refunds in...
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