White v. CIR, Civ. A. No. 93-30233-MAP.

• Decision Date: 15 August 1995
• Docket Number: Civ. A. No. 93-30233-MAP.
• Citation: 899 F. Supp. 767
• Parties: George M. WHITE, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.
• Court: U.S. District Court — District of Massachusetts

899 F. Supp. 767

George M. WHITE, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.

Civ. A. No. 93-30233-MAP.

United States District Court, D. Massachusetts.

August 15, 1995.

COPYRIGHT MATERIAL OMITTED

George M. White, Holyoke, MA, pro se.

Karen L. Goodwin, United States Attorney's Office, Springfield, MA, Beth A. Westerman, Trial Attorney, Tax Division, U.S. Department of Justice, Washington, DC, for defendant.

PONSOR, District Judge.

Upon de novo review this recommendation is hereby adopted. The motion to dismiss is hereby allowed, for the reasons set forth in Judge Neiman's report. The error, if any, objected to by plaintiff does not affect the report's substance. The clerk is ordered to enter judgment for the defendant. So Ordered.

REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS

NEIMAN, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff George M. White, acting pro se, filed suit asserting a variety of claims against the Internal Revenue Service ("IRS"). Plaintiff claims, inter alia, that the IRS violated the "Taxpayer Bill of Rights" during an audit of his 1987 Form 1040X, that IRS agents caused damage to his health and well-being during several audits, that such actions violated his constitutional rights, and that the IRS provided defective "products and services." Defendant United States has moved to dismiss the complaint pursuant to both Fed.R.Civ.P. 12(b)(1), for lack of jurisdiction, and Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Defendant's motion has been referred to the Court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts. 28 U.S.C.A. § 636(b)(1)(B). The Court recommends granting Defendant's Motion to Dismiss for the reasons set forth below.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's suit was initiated in November, 1993, in order to "repair damage" to his health and well-being. In his complaint and subsequent filings, Plaintiff alleges that "reckless and unauthorized" actions by IRS commissioners and agents in both Florida and Massachusetts caused him unspecified personal injury in violation of the Taxpayer's Bill of Rights. Although identified in the complaint, none of these agents or former commissioners were ever named as defendants in this action; the action was initiated solely against Shirley Patterson in her role as Commissioner of IRS. In his "plea in response to defendant's answers" (Plea), ¶ 4 (Docket No. 07), Plaintiff requested that Defendant be changed from "Shirley Peterson, Commissioner" to simply "Commissioner of Internal Revenue." The United States was served as a defendant in December of 1994.

The Court has organized Plaintiff's claims, advanced in both his Complaint and his Plea, as much as possible. Plaintiff claims that he is entitled to damages for the IRS's alleged "reckless and unauthorized" actions in violation of the Taxpayer's Bill of Rights. Complaint, ¶ 4. Plaintiff alleges that he sustained unspecified injury from general "errors in judgment" by IRS employees and their specific failure to answer letters, return phone calls, and cooperate with Plaintiff. Complaint, ¶¶ 5, 6, 13, 14 and 16. For example, Plaintiff claims that his wife went into premature labor as a result of an IRS agent's failure to answer a letter. Complaint, ¶ 5. Plaintiff also alleges that an ombudsman failed to act under an Application for Taxpayer Assistance Order, Complaint, ¶ 19, and failed to suspend collection activities while his request for hardship was being processed. Plea, ¶ 12. Allegations arising from IRS audits include claims that agents misrepresented Plaintiff's income and failed to accept "valid facts and documents" presented by Plaintiff in regard to his business. Complaint, ¶¶ 8 and 12. In addition, Plaintiff alleges that an IRS supervisor's refusal to reschedule an audit caused Plaintiff to lose a substitute teaching job. Complaint, ¶ 9.

Various allegations of religious discrimination are also outlined in Plaintiff's complaint. These include allegations (1) that the Commissioner promoted "contradictory policy within the IRS in regard to religious freedom," (2) that an agent referred to Plaintiff's religion as a "controversial group," and (3) that the agents' failure to comply with the Supreme Court decision in Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989), reh'g denied, 492 U.S. 933, 110 S.Ct. 16, 106 L.Ed.2d 630 (1989), caused Plaintiff unspecified injury. Complaint, ¶¶ 7, 10 and 11.

Plaintiff also relies on IRS Publication # 594 for his claim of "product liability." Publication # 594 states, in applicable part, that "the purpose of the IRS is to.... serve the public by continually improving the quality of our products and services; and perform in a manner warranting the highest degree of public confidence in our integrity, efficiency, and fairness." Plaintiff asserts that, "if proper procedure had been followed by the agents, the product would have been a taxpayer who has met every obligation without violation of the Constitutional right to freedom from fear." Plea, ¶ 14. Plaintiff alleges that the IRS, as the producer of a "product," is subject to product liability law. Finally, Plaintiff claims that an alleged "illegal" tax lien was filed by the IRS for the 1987 tax year. Complaint, ¶ 15. Plaintiff asserts that all remedies at law have been exhausted.

Plaintiff initially sought injunctive relief for the "speedy settlement" of issues in the tax audits performed for calendar years 1987, 1988 and 1989. The government asserts that these claims are barred by the Anti-Injunction Act, 26 U.S.C. § 7421. However, Plaintiff indicated in his Plea, as well as in his Pre-Trial Memorandum (Docket No. 19), that he was in the process of a final settlement for the 1988 and 1989 tax years and that he received a refund check for the 1987 tax year, which mooted claims for injunctive relief and, impliedly, the removal of the lien. Despite Plaintiff's written assertions, he indicated at the hearing on Defendant's motion to dismiss that he was not waiving any claims. Therefore, for the purposes of this report and recommendation, the Court considers all of Plaintiff's claims outstanding.

III. MOTION TO DISMISS STANDARDS

When a Court is faced with a motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.Pro. 12(b)(1), the party asserting jurisdiction has the burden to establish through competent proof that jurisdiction exists. O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982). See also Stone v. Dartmouth College, 682 F.Supp. 106, 107 (D.N.H.1988). The competent proof standard permits a court to require that the party asserting jurisdiction justify its allegations by a preponderance of evidence. Racich v. Mid Continent Builders Co., 755 F.Supp. 228, 229 (N.D.Ill.1991), citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). When determining whether it is vested with jurisdiction to hear a particular case, the court must construe the allegations of the complaint in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). However, a court is not bound by the allegations in the pleadings when considering motions to dismiss for lack of subject matter jurisdiction brought under Rule 12(b)(1). The Court can look beyond the pleadings—to affidavits and depositions—in order to determine jurisdiction. See Wright & Miller, Federal Practice and Procedure: Civil § 1363 (1990).

With regard to Fed.R.Civ.Pro. 12(b)(6), a motion to dismiss is designed to test the legal sufficiency of the complaint. "The Court's function on a Rule 12(b)(6) motion is not to weigh the evidence which might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir.1990). A motion to dismiss requires the Court to accept "the factual averments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B, 958 F.2d 15, 17 (1st Cir.1992). See also Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir.1993). The First Circuit has stated that it will affirm a dismissal for failure to state a claim only if it appears, according to the facts alleged, that the claimant cannot recover on any viable theory. Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st Cir.1992). However, "despite the highly deferential reading which we accord a litigant's complaint under Rule 12(b)(6), we need not credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990).

The Court must take special care when ruling on motions concerning pleadings filed by pro se litigants, as in the situation here, as they are held to a less stringent standard than those drafted by lawyers. Gonyer v. Franklin County Sheriff Fredrick McDonald, 874 F.Supp. 464 (D.Mass.1995), citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972), and Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). When the Court looks to the allegations in a pro se litigant's complaint and "if under any theory they are sufficient to state a cause of action in accordance with law, a motion to dismiss the complaint must be denied." Gonyer, supra, citing Knight v. Mills, 836 F.2d 659 (1st Cir. 1987). This standard requires the Court to be especially indulgent in accepting the truth of the factual averments of the complaint and to consider...