Hassell v. United States

203 F.R.D. 241, 83 A.F.T.R.2d (RIA) 2843, 1999 U.S. Dist. LEXIS 8997, 1999 WL 33409804
CourtDistrict Court, N.D. Texas
DecidedJune 1, 1999
DocketNo. 3:97-CV-1882-P
StatusPublished
Cited by3 cases

This text of 203 F.R.D. 241 (Hassell v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hassell v. United States, 203 F.R.D. 241, 83 A.F.T.R.2d (RIA) 2843, 1999 U.S. Dist. LEXIS 8997, 1999 WL 33409804 (N.D. Tex. 1999).

Opinion

ORDER

SOLIS, District Judge.

Now before the Court are the United States’ Individual Defendants’ Motion to Dismiss, filed September 23, 19981 and Plaintiffs Motion for Continuance, filed March 10, 1999. Defendants filed their motion to dismiss on September 23, 1998. The Court notified Plaintiff on January 6, 1999 that he had fifteen (15) days from the date of the Order to file a response to the motion if he chose to do so. After the fifteen (15) day deadline had expired, Plaintiff requested an extension of time to respond to Defendants’ motion. Plaintiffs request was granted on February 10,1999, and the response deadline was extended to March 10, 1999. On March 10, Plaintiff moved for a continuance, so that he could retain legal counsel. Plaintiff never filed a response to Defendants’ Motion to Dismiss.

After careful review of the motions, case file and applicable law, the Court hereby GRANTS in part and DENIES in part the Individual Defendants’ Motion to Dismiss. Plaintiffs Motion for Continuance is DENIED.

A. Motion to Dismiss

In his Complaint, Plaintiff names as defendants nine (9) Internal Revenue Service Employees or Officers (Rossotti, Allred, Paxton, Sobities, Acevedo, Christian, Murphy, Venable and Hudley), the Attorney General (Reno), the U.S. Attorney for the Northern District of Texas (Coggins), Senator Orrin Hatch, the United States of America, Messrs. Campbell, Conrad and Thornton, and the Citizen Advocacy Panel. In their Motion to Dismiss, Defendants Allred, Paxton, Sobities, Acevedo, Christian, Murphy and Venable seek dismissal of Plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(6) to the extent these defendants are being sued in their individual capacities for damages. Further, Defendants maintain that because they were not properly served in their individual capacities, any claims against them in their individual capacities must be dismissed.

[244]*2441. Failure to State a Claim

Defendants note in their motion that Plaintiff seeks damages “against each defendant for $1,000,000” pursuant to the Taxpayers’ Bill of Rights, 26 U.S.C. § 7433. Pl.’s First Am. Compl. at 8. Defendants argue that because it is unclear from the language of Plaintiffs Complaint whether Plaintiff is seeking recovery of damages against these Defendants in their individual capacities, the Court should dismiss such claims on qualified immunity grounds. Def.’s Mot. at 2.

Section 7433 provides that a taxpayer’s exclusive remedy for recovering damages arising in connection with the collection of federal taxes caused by the reckless or intentional disregard of any provision of Title 26 by an officer or employee of the IRS is the filing of a civil action for damages against the United States. 26 U.S.C. § 7433. Because the statute provides that only the United States may be a § 7433 defendant, this claim against Defendants in their individual capacities must be dismissed.

Further, § 7431 provides that a taxpayer’s exclusive remedy for recovering damages arising from unauthorized disclosure of tax information is the filing of a civil action against the United States. It reads in pertinent part as follows, “if any officer or employee of the United States knowingly or by reason of negligence, inspects or discloses any return or return information of any taxpayer ... such taxpayer may bring a civil action for damages against the United States.” 26 U.S.C. § 7431. Even assuming that Defendants Paxton and Allred did unlawfully disclose Plaintiffs return or his return information, Plaintiff may only recover damages against the United States, not the government employees in their individual capacities. Therefore, Plaintiffs unauthorized disclosure claim against the individual defendants must be dismissed.2

To the extent that Plaintiff alleges that Defendants are liable in their individual capacities for violating Plaintiffs Fifth Amendment rights, Defendants maintain that no such action can stand against Defendants in their individual capacities. The Court rejects Defendants’ argument. Construed liberally, Plaintiff alleges more than simple wrongful levy against him with respect to the IRS revenue officers. Plaintiff maintains that Earl Hudley harassed him by falsely accusing Plaintiff of engaging in illegal activity and threatening to seize Plaintiffs home, thereby causing Plaintiffs wife to suffer a stroke. Plaintiff also alleges that all IRS officers named as defendants in this suit harassed Plaintiff and describes “numerous” occasions whereby IRS agents came to Plaintiffs home to measure the lot size.

A Fifth Amendment claim against a government official in his individual capacity is permissible when a plaintiff alleges that an IRS agent maliciously harassed him in connection with his taxes. Rutherford v. United States, 702 F.2d 580, 584 (5th Cir.1983). Because Plaintiffs Complaint, read in the light most favorable to him, can be read as alleging malicious harassment by Hudley and the eight other officers (Rossotti, Allred, Paxton, Sobities, Acevedo, Christian, Murphy and Venable) that caused Plaintiffs wife to suffer a stroke, the movants have not met their burden of proving that Plaintiff failed to state a claim upon which relief can be granted under the Fifth Amendment. Plaintiffs Fifth Amendment claim will not be dismissed as to Defendants in their individual capacities.

Finally, the Court does not have subject matter jurisdiction over Plaintiffs 18 U.S.C. § 1503 obstruction of justice claim. Criminal statutes can neither be enforced by civil action nor by private parties. Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir.1964); See United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082 (1878). Because a private person cannot initiate a criminal prosecution in his own name in a civil proceeding, the Court is without jurisdiction over Plaintiffs obstruction allegation.

2. Lack of Service

Defendants maintain that Plaintiff failed to properly serve them in their individ[245]*245ual capacities pursuant to Federal Rule of Civil Procedure 4(e). Rule 4(e) requires service upon individuals be made in one of two ways: (1) pursuant to the law of the state in which the district court is located, which, in this case, is Texas or (2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s home with a person of suitable age and discretion or with an authorized agent. Fed.R.Civ.P. 4(e)(1), (2).

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Bluebook (online)
203 F.R.D. 241, 83 A.F.T.R.2d (RIA) 2843, 1999 U.S. Dist. LEXIS 8997, 1999 WL 33409804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hassell-v-united-states-txnd-1999.