Steele v. United States

• Decision Date: 09 April 2020
• Docket Number: Case No. 1:19-cv-705
• Parties: JOHN K. STEELE, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

JOHN K. STEELE, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Case No. 1:19-cv-705

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

April 9, 2020

McFarland, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff John Steele, proceeding pro se, originally filed this action in the Hamilton County, Ohio Court of Common Pleas on July 25, 2019. (Doc. 1-3; see also Doc. 4). He named as defendants the United States, "assessment officer" Benjamin F. Ray, Department of Justice (DOJ) witness Rebecca Pomatto, United States District Court Judge Gregory F. Van Tatenhove, and United States Attorney General William P. Barr. The United States removed the action to this Court pursuant to 28 U.S.C. § 1442.¹ This matter is before the Court on defendants' motion to dismiss (Doc. 8), plaintiff's response in opposition (Doc. 10), and defendants' reply memorandum (Doc. 11).

I. Allegations of the complaint

The undersigned summarized the allegations of plaintiff's complaint in a Report and Recommendation issued on December 10, 2019 as follows:

Plaintiff's complaint alleges that defendants violated his federal constitutional and other rights in the course of a prior civil suit which the United States brought against him on behalf of the Internal Revenue Service (IRS) for failure to pay federal income taxes. See United States v. Steele, No. 3:16-cv-00095, 2018 WL298778 (E.D. Ky. Jan. 3, 2018) (the federal tax case). In support of a motion for partial summary judgment filed in that case, the United States provided Certificates of Assessment for ten tax years and a sworn statement by Pomatto, an IRS Revenue Officer, setting forth Steele's total indebtedness to the United States. (Id. at *2). Judge Van Tatenhove granted the United States' motion and found that plaintiff was "indebted to the United States for unpaid federal income taxes, penalties, and interest in the amount of $2,861,096.54 as of October 31, 2016." (Id. at *3). Judge Van Tatenhove granted a consent motion for the disbursement of funds (See Case No. 3:16-00095, Doc. 117) and dismissed the lawsuit on September 3, 2019 (Id., Doc. 118). Plaintiff appealed the Court's Order on Motion for Disbursement of Funds to the United States Court of Appeals for the Sixth Circuit on October 2, 2019. (Doc. 119).

Plaintiff asserts in this lawsuit that both the federal and state courts have jurisdiction under the United States and Ohio Constitutions over the claims he brings. (Doc. 4 at 6-8). Plaintiff brings his claims under the Ohio Constitution and federal statutory and constitutional law. (Doc. 4 at 8-15). Plaintiff alleges that his claims are based on various provisions of the United States Constitution related to the power to tax; the "uniformity clause"; the Fourth Amendment's protection against unreasonable search and seizure; the right to due process; and the right to trial by jury. (Id. at 9-12).

Plaintiff claims that defendants attempted to extort him "under color of law" and "under color of office" by engaging in unconstitutional taxation practices in the absence of legitimate subject matter jurisdiction or legal authority. (Id.). Plaintiff alleges that defendants committed "unconstitutional acts" and violated 18 U.S.C. § 872, which criminalizes acts of extortion by federal officers or employees. (Id.).

Plaintiff claims that defendant IRS agents and officers committed criminal forgery, which voids the judgment against him in the federal tax case. (Doc. 4 at 14-15, 25-26). Plaintiff alleges that the revenue officers and IRS agents named as defendants "forg[ed] the unauthorized signatures(s) of other persons" on the "Notice(s) of Federal Tax Lien(s)" which formed the basis for the federal civil judgment against him. He contends defendants did so "[b]y using, without authorization, a facsimile image of signatures, instead of using their own signature on the Notice of Federal tax Liens." (Doc. 4 at 14-15, citing Exh. A). Plaintiff alleges that in doing so, "the Agents and Officers have acted only under color of law and color office [sic] (under IRC § 7608(a))."² (Id.). Plaintiff alleges that the IRS employees violated both "federal and State law," and they do not have a legitimate defense available to them under IRC §§ 7608(a) and 6321³ because forgery is not an authorized activity. (Id. at 15). Plaintiff argues that hewill suffer great and irreparable injury if the forged documents that the district court relied upon in the "previous, related litigation" to award judgment to the United Sates can be enforced as legal claims in Kentucky "state land records, offices, and courts." (Id.).

Plaintiff claims that defendants have committed fraud in violation of numerous provisions of the Internal Revenue Code and federal IRS regulations. (Id. at 10-12, 24-25). He also contends that defendants have violated his constitutional property rights, his rights to equal protection and due process of law, and his right to be secure in his person and property. (Id. at 25). Plaintiff further claims that defendants and the IRS have enforced and continue to enforce an "unauthorized direct unapportioned tax under the 16th Amendment," and they have attempted to subject him to a "prohibited condition of peonage debt service" and involuntary servitude in violation of the 13th Amendment and "both Constitutions, under color of law and color of office." (Doc. 4 at 22, 26-27). He claims defendants violated his rights in the federal tax case by refusing to recognize his rights to a jury trial and to produce evidence favorable to him during the proceedings. (Id. at 18-21).

Plaintiff sums up his allegations and claims as follows:

Defendants have extortionately committed unlawful threats of force; and are attempting to enforce VOID judgments issued by a federal court lacking subject matter jurisdiction under the 16th Amendment and Article 1, to enforce any direct taxation claims made under alleged authority of the 16th Amendment, for lack of granted enabling enforcement powers thereunder. Thus, unlawfully converting private property in the states of Ohio and Kentucky, under both color of law and color of office, in [sic] blatant multiple violations of the plaintiff's numerous constitutional rights as here-in-above enumerated and articulated under both Constitutions. (Id. at 27).

Based on these allegations, plaintiff brings claims for "fraud, attempted extortion, conversion, conspiracy, peonage, involuntary servitude, and for violations of due process, private property, and the Right to a trial by jury" under the Ohio Constitution and the Constitution and laws of the United States. (Id.). Plaintiff requests a jury trial which will afford him due process and remedy the federal and state constitutional and statutory violations defendants have allegedly committed; compensatory and punitive damages; an order requiring defendants to comply with the United States Constitution and the Internal Revenue Code; and all other relief the Court deems proper to make plaintiff whole. (Id. at 27-28).

(Doc. 12 at 1-4).

II. Motion to dismiss

Defendants contend that plaintiff's tax-related claims against the United States and its officers are barred by the doctrine of sovereign immunity; plaintiff cannot pursue a Bivens⁴ action against the United States or the individual federal officers for alleged violations of his constitutional rights while acting under color of federal law; plaintiff cannot bring a claim against the United States under 26 U.S.C. § 7433 to recover damages in this matter; and plaintiff is barred from seeking injunctive relief by the Anti-Injunction Act, 26 U.S.C. § 7421. (Doc. 8). Defendants further assert that the Court lacks personal jurisdiction over Judge Van Tatenhove, and he is entitled to judicial immunity from monetary damages. Finally, defendants argue that plaintiff is barred from relitigating claims related to his federal tax liability for the years 2000 through 2010 under the doctrine of res judicata.

1. Standard of review

When deciding a Rule 12(b)(6) motion to dismiss, the Court must construe all factual allegations as true and in the light most favorable to the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Fed. R. Civ. P. Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. "[T]he statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Keys, 684 F.3d at 608 (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The "[f]actual allegationsmust be enough to raise a right to relief above the speculative level" and to "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555, 570). The plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal,556 U.S. 662, 678 (2009)).

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction can present a facial or factual challenge to the court's subject matter jurisdiction under Rule 12(b)(1). DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citations omitted). A facial attack on the Court's subject matter jurisdiction alleged in the complaint "merely questions the sufficiency of the pleading." Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). When resolving a facial challenge, the Court accepts the factual allegations of the complaint as true and construes the complaint in a light most favorable to the non-moving party. United States v. A.D. Roe Co., Inc., 186 F.3d 717, 721-22 (6th Cir. 1999). If the motion presents a factual challenge, the Court may consider evidence outside the pleadings to...