Cole v. Hunter

• Court: District Court, D. Arizona
• Decided: June 24, 2025
• Docket: 2:25-cv-01989
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Brandon Cole, No. CV-25-01989-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Tereasa Hunter,

13 Defendant. 14 15 Pending before the Court is Plaintiff’s motion to proceed in forma pauperis (“IFP”). 16 (Doc. 2). 17 I. Legal Standards 18 A. Ability to Pay 19 “There is no formula set forth by statute, regulation, or case law to determine when 20 someone is poor enough to earn IFP status.” Escobedo v. Applebees, 787 F.3d 1226, 1235 21 (9th Cir. 2015). “An affidavit in support of an IFP application is sufficient where it alleges 22 that the affiant cannot pay the court costs and still afford the necessities of life.” Id. at 1234 23 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 24 B. 28 U.S.C. § 1915(e)(2)

25 Congress provided with respect to in forma pauperis cases that a district court “shall dismiss the case at any time if the court determines” that 26 the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which relief may be 27 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). While much of section 1915 outlines 28 how prisoners can file proceedings in forma pauperis, section 1915(e) applies 1 to all in forma pauperis proceedings, not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“section 1915(e) applies to all 2 in forma pauperis complaints”). “It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint 3 that fails to state a claim.” Id. Therefore, this court must dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious. 4 5 Kennedy v. Andrews, 2005 WL 3358205, *2 (D. Ariz. 2005). Additionally, “Inquiring 6 whether the court has jurisdiction is a federal judge’s first duty in every case.” Belleville 7 Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). 8 II. In Forma Pauperis Application 9 Here, the Court has reviewed the application to proceed IFP. (Doc. 2). The Court 10 finds Plaintiff cannot pay the filing fee and still afford necessities. Accordingly, the motion 11 will be granted. 12 III. Complaint 13 Next, the Court will screen the complaint under 28 U.S.C § 1915(e)(2). In short 14 summary, Plaintiff is suing the Internal Revenue Service and one if its employees, Tereasa 15 Hunter, seeking a refund of certain taxes he claims to have overpaid. (Doc. 1 at 4). 16 In order for a district court to have subject matter jurisdiction over a tax refund suit, the plaintiff must meet five conditions imposed by 28 U.S.C. 17 § 1346(a)(1), I.R.C. § 7422(a), and judicial precedent: 1) full payment of the tax; 2) a valid credit claim filed with the IRS; 3) action on the claim by the 18 IRS; 4) the suit for refund must be brought within two years of the IRS’ denial; and 5) the suit for refund must have the same basis as the claim 19 originally filed with the IRS. Jacob Mertens, Jr., Mertens Law of Federal Income Taxation § 58A.11 (1995). 20 21 King v. United States, 949 F. Supp. 787, 789 (E.D. Wash. 1996), aff'd, 152 F.3d 1200 (9th 22 Cir. 1998). 23 Similarly, 24 While 28 U.S.C. § 1346(a)(1) generally grants federal district courts jurisdiction over civil actions against the United States for the recovery of 25 any sums allegedly wrongfully collected under federal internal revenue laws, such jurisdiction is lacking unless the taxpayer has first paid the assessed tax 26 and has filed an administrative claim for a refund with the IRS. United States v. Dalm, 494 U.S. 596, 601–02 (1990); 26 U.S.C. § 7422(a); Boyd v. United 27 States, 762 F.2d 1369, 1371 (9th Cir.1985) (The filing of a refund claim meeting the requirements of the IRC and the regulations is a “jurisdictional 28 prerequisite” to a suit seeking to recover taxes which have been erroneously 1 or illegally collected.) .... Furthermore, ... the Court has no jurisdiction to enter any declaration 2 to the effect that the IRS wrongfully determined the amount of taxes owed by the plaintiffs, see 28 U.S.C. § 2301: Hughes v. United States, 953 F.2d 3 531, 536-37 (9th Cir. 1992)... 4|| Doyal v. United States, 308 F. Supp. 2d 1003, 1005 (D. Ariz. 2003). 5 Here, reviewing the complaint liberally, Plaintiff appears to state a claim and 6|| establish jurisdiction. Accordingly, the complaint may be served. However, the Court allows the claim to proceed without prejudice to Defendants making any motions they g || deem appropriate. See Coleman v. Maldnado, 564 F. App’x 893, 894 (9th Cir. 2014) (a g|| district court may properly grant a motion to dismiss despite a prior screening order finding || the complaint stated a claim); Jones v. Sullivan, 19-CV-0025BKSCFH, 2020 WL 5792989, 11 |} at *5 (N.D.N.Y. Sept. 29, 2020) (“A court’s initial screening under § 1915(e) and/or § 12 || 1915A does not preclude a later dismissal under Fed. R. Civ. P. 12(b)(6).”); see also Kuntz 13 || v. Lamar Corp., 385 F.3d 1177, 1181 (9th Cir. 2004) (“...challenges to a federal court’s 14 || subject matter jurisdiction cannot be waived and may be raised at any time.). 15 Based on the foregoing, 16 IT IS ORDERED that Plaintiff's application to proceed in forma pauperis is 17 || granted. 18 IT IS FURTHER ORDERED that Plaintiff must serve the summons, complaint and a copy of this Order on Defendant within the time set by Federal Rule of Civil 99 || Procedure 4(m). Plaintiff may either serve the complaint through his own means, or file a 21 || motion asking for service by the U.S. Marshals. Any motion for Marshal service must be || filed within 14 days of the date of this Order. 23 Dated this 24th day of June, 2025. 24 25 26 2 Ke James A. Teilborg 27 Senior United States District Judge 28

_3-