White v. Boyle

• Decision Date: 21 February 1975
• Docket Number: Civ. A. No. 74-9.
• Citation: 390 F. Supp. 514
• Parties: Kenneth WHITE, Plaintiff, v. James P. BOYLE et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

390 F. Supp. 514

Kenneth WHITE, Plaintiff, v. James P. BOYLE et al., Defendants.

Civ. A. No. 74-9.

United States District Court, W. D. Virginia, Charlottesville Division.

February 21, 1975.

Kenneth White, pro se.

Paul R. Thomson, Jr., Asst. U. S. Atty., Roanoke, Va., James H. Jeffries, III, Trial Atty., Tax Div., Dept. of Justice, Washington D.C., for defendants.

OPINION and ORDER

TURK, Chief Judge.

Plaintiff Kenneth White has filed this pro se complaint against six Internal Revenue Service Officers alleging that defendants violated his constitutional rights, conspired to do the same and refused to protect him from such conspiracy. Plaintiff asks for $275,000 in damages from each defendant and an injunction restraining defendants from any further actions which violate his constitutional rights. The case is now before the court pursuant to defendants' motion to dismiss or for summary judgment.

Plaintiff asserts that jurisdiction in this court exists under 28 U. S.C. § 1343(1), (2), (3), (4) and 42 U. S.C. §§ 1983, 1985 and 1986. It is clear that the acts of the defendants for which plaintiff seeks relief were not done under color of state law and plaintiff's reliance on the above statutory sections is misplaced. See Bellamy v. Mason Stores, Inc., 508 F.2d 504 (4th Cir. 1974). However, a charitable reading of plaintiff's complaint indicates that jurisdiction in this court is probably available under 28 U.S.C. § 1331 and that a cause of action has been stated. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Nevertheless, for the reasons which follow the court is of the opinion that defendants are entitled to summary judgment with respect to plaintiff's claim for damages and plaintiff's claims for injunctive relief should be dismissed.

The pertinent facts taken from plaintiff's complaint are undisputed. Plaintiff is the President of an organization known as the Virginia Taxpayers Association, and in this capacity, he has distributed news releases which are critical of government taxing and spending policies and make unfavorable reference to the IRS. On January 17, 1974, two IRS agents (defendants Higginbotham and an unnamed companion agent) came to plaintiff's home; plaintiff was not there and Mr Higginbotham left his card with a note written on the back requesting plaintiff to call or write as soon as possible so that a meeting could be arranged. On January 22, 1974, Mr. Higginbotham called plaintiff, who refused to talk to him, beyond stating that he did not want to meet with him and that he thought Higginbotham's actions violated his constitutional rights. On February 6, 1974, Mr. Higginbotham served a summons on the Vice President and Manager of the Fidelity National Bank which directed that the bank records relating to plaintiff and his wife be produced for his inspection.¹ Thereafter, on February 19, 1974, the bank records were inspected.

Affidavits from defendant Higginbotham and Bob Moore (designated as the unnamed companion agent in plaintiff's complaint) add the following facts. The reason Messrs. Higginbotham and Moore visited plaintiff on January 17, 1974, was to determine why his 1972 tax return was blank except for the statement written across the face of it, "Filed Under Protest." Similarly, the reason for the summons which Mr. Higginbotham served upon plaintiff's bank on February 6, 1974, was to obtain information relative to plaintiff's possible tax liability in 1972.

Plaintiff alleges that his prominence in the Virginia Taxpayers Association resulted in the IRS singling him out as a "sensitive case" and a "high deterrent case". He alleges that the aforementioned actions of the defendants were in retaliation for his political activities and violated several of his constitutional rights including privacy, free speech and freedom from unreasonable search and seizure.

The court has liberally construed plaintiff's complaint in light of the fact that plaintiff is not represented by counsel, but is nevertheless of the opinion that the pertinent facts are not in dispute and even if plaintiff could prove his allegations, he would not be entitled to judgment. It is clear that the actions of the defendants which plaintiff so strongly challenges were taken pursuant to federal law and were within the scope of their authority. The court perceives the actions of defendants Higginbotham and Moore in going to plaintiff's home and leaving a note and thereafter phoning him in an attempt to set up a meeting as being reasonable, good faith efforts taken in response to plaintiff's 1972 tax return.² The summons to which Mr. Higginbotham was apparently forced to resort was issued pursuant to statute 26 U.S.C. § 7602. Because defendants' actions were taken in good faith and within the scope of their duties, they enjoy official immunity. Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Kotmair v. Gray, 505 F.2d 744 (4th Cir. 1974).

Insofar as plaintiff's complaint may be construed to challenge the constitutionality of certain provisions of the Internal Revenue Code and an attempt to enjoin their enforcement against him, additional reasons supporting dismissal of the complaint exist. Section 7421(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 7421(a)³ prohibits a suit to...