(PS) Bevan v. United States

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUSSELL BEVAN and HEIDI LEE, No. 2:24-cv-2641-DAD-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 UNITED STATES OF AMERICA, et al., 15 Defendants. 16 17 18 Plaintiffs are proceeding pro se, and this matter was referred to the undersigned in 19 accordance with Local Rule 302(c)(21). Plaintiffs filed this action on September 30, 2024. The 20 undersigned issued an Order to Show Cause (OSC) (ECF No. 5) noting that the complaint 21 contained “wholly insubstantial and frivolous” allegations. The OSC pointed out that the 22 jurisdictional statement was deficient, and that the complaint failed to state a claim. The OSC 23 directed Plaintiffs to show cause why the action should not be dismissed for lack of jurisdiction or 24 failure to state a claim. ECF No. 5 at 4. 25 Plaintiffs filed a response on January 31, 2025. ECF No. 6. Plaintiffs declare they are 26 “transient foreigner[s]” and are “stateless person[s]” not subject to the jurisdiction of the federal 27 courts. ECF No. 6 at 2. What follows then is a lengthy list of “information requested from 28 //// 1 agents.” Id. at 2-6. Plaintiffs further state they did not receive a notice of deficiency and the 2 notice of intent to levy should be null and void. Id. at 7. 3 The response does not adequately address the issues raised in the OSC. Plaintiffs’ 4 complaint alleges they are “non-fiction,” “non-citizen,” and “non-taxpayer.” ECF No. 3 at 6, 11. 5 Plaintiffs’ response to the Court’s inquiry about jurisdiction is to state they are beyond the 6 jurisdiction of the federal courts, even though they filed this action in federal court. Plaintiffs’ 7 filings appear legally frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (a complaint is 8 frivolous “where it lacks an arguable basis either in law or in fact”). Considering the complaint’s 9 allegations that Plaintiffs are non-taxpayers outside the jurisdiction of the federal courts, the 10 Court cannot discern what plausible claim Plaintiffs are attempting to assert. See Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544, 570 (2007) (a complaint must contain sufficient factual matter 12 to “state a claim to relief that is plausible on its face”). A court may dismiss a claim sua sponte 13 under Federal Rule of Civil Procedure 12(b)(6). Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 14 (9th Cir. 1987). Here, the Court gave notice of the deficiencies in the complaint and Plaintiffs 15 have responded. The Court now recommends that the action be dismissed for the reasons stated 16 herein, and in the Court’s OSC. 17 The Court has considered whether Plaintiffs should be granted leave to amend. The Court 18 has liberally construed Plaintiffs’ pro se complaint and considered that generally pro se litigants 19 are given an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) 20 (“[a] district court should not dismiss a pro se complaint without leave to amend unless it is 21 absolutely clear that the deficiencies of the complaint could not be cured by amendment”). Here, 22 granting leave to amend would be futile. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 23 (en banc) (“Courts are not required to grant leave to amend if a complaint lacks merit entirely.”); 24 Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (“Where the 25 legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend.”). 26 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 27 leave to amend and the case closed. 28 These findings and recommendations are submitted to the United States District Judge 1 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 2 | days after being served with these findings and recommendations, either party may file written 3 || objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Local Rule 304(d). The parties are advised that failure to file 5 || objections within the specified time may waive the right to appeal the District Court’s order. 6 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 7 | DATED: April 7, 2024 mk 9 SEAN C. RIORDAN 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28