(PS) Nelson Rogers v. Enjalran

• Court: District Court, E.D. California
• Decided: March 18, 2020
• Docket: 2:19-cv-01564
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARY A. NELSON ROGERS, No. 2:19-cv-01564-TLN-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL J. ENJALRAN et al., (ECF Nos. 25, 28, 29, 30, 33) 15 Defendants. 16 17 Presently before the court are four motions to dismiss by ten defendants.1 (ECF Nos. 25, 18 28, 29, 30.) Plaintiff has filed two nearly identical oppositions to defendants’ motions that do not 19 provide substantive analysis. (ECF Nos. 31, 32.) Plaintiff also filed a motion to amend her 20 pleading and a proposed Third Amended Complaint. (ECF Nos. 33, 34). A hearing on the 21 motions to dismiss was held on March 11, 2020; plaintiff appeared representing herself, James 22 Petrila appeared telephonically for the individual federal defendants and the United States, Ian 23 McGlone appeared for defendant Roughton, Shannon Hewitt appeared for defendants Allred and 24 K. Knight, and Jason Shane appeared for defendant Marriott. After hearing oral argument and 25

1 Plaintiff names the Internal Revenue Service as a defendant in this action. However, the United 26 States is the proper party based on plaintiff’s claims. See Devries v. I.R.S., 359 F. Supp. 2d 988, 27 991 (E.D. Cal. 2005) (“Where taxpayers are authorized to sue on matters arising out of IRS actions, the United States is the proper party defendant.”). Therefore, the court refers to the 28 United States, rather than the IRS, as a defendant. 1 considering the briefing of the parties, the undersigned recommends granting defendants’ 2 motions, but giving plaintiff leave to amend as to the United States. 3 BACKGROUND 4 Unless otherwise indicated the undersigned refers to the operative Second Amended 5 Complaint. (ECF No. 24.) Plaintiff alleges that the present action “arises out of the IRS 6 Defendants’ wrongful acts and omissions concerning [plaintiff]” in violation of multiple sections 7 of the United States Code.2 (Id. at 2.) More specifically, plaintiff alleges that defendants 8 “repeatedly accessed and inspected the Plaintiff’s information in violation of federal law that 9 prohibits IRS agents from inspecting taxpayer information without authorization.” (Id.) Plaintiff 10 alleges the non-IRS defendants injured plaintiff “by fraud” and that the non-IRS defendants were 11 “agents” of the IRS at all relevant times. (Id. at 2-3.) 12 The alleged violations caused plaintiff economic insolvency, humiliation, mental pain and 13 suffering, damage to her credit, and to incur expenses to prevent further unreasonable searches 14 and seizures. (Id. at 10.) Plaintiff prays for “[e]quitable relief, including an Injunction for Court 15 oversight on IRS Defendant Gloria Sullivan” as well as a release of liens filed against plaintiff’s 16 real property and a release of levies and garnishments “filed against Plaintiff[’s] financial bank 17 institutions held by IRS Defendant Paul J. Enjalran.” (Id. at 11.) Plaintiff also requests 18 “compensatory, statutory and general damages against IRS Defendants . . . and . . . exemplary 19 and punitive damages against all Defendants sued in their individual capacities.” (Id.) 20 Procedurally, plaintiff has filed four complaints in this matter. The original complaint was 21 filed on August 13, 2019. (ECF No. 1.) Several of the defendants filed motions to dismiss, but 22 before those could be heard the plaintiff filed a motion to amend the complaint. (ECF No. 17.) On 23 December 17, 2019, the court granted plaintiff’s motion to amend her complaint as a matter of 24 course pursuant to Federal Rule of Civil Procedure 15. (ECF No. 19.) The court instructed 25 plaintiff that her “amendment as a matter of course renders [her] original complaint non-existent.” 26 2 Plaintiff states the IRS defendants violated the following sections: 26 U.S.C. § 7433; 12 U.S.C. 27 § 3401; 12 U.S.C. § 3402; 12 U.S.C. § 3403; 12 U. S.C. § 3404; 15 U.S.C. § 1692D; 15 U.S.C. § 1692E; 15 U.S.C. § 1692F; 18 U.S.C. § 1702; 26 U.S.C. § 6103; 26 U.S.C. § 7431; 28 U.S.C. § 28 1346; 31 U.S.C. § 1304. 1 (Id.) However, plaintiff’s First Amended Complaint only named two defendants, Paul Enjalran 2 and Kamal Kaur, omitting several defendants named in her original complaint. (Compare ECF 3 No. 1 at 2-7 with ECF No. 18 at 2-4.) 4 Thereafter, on January 15, 20020, plaintiff filed a Second Amended complaint which 5 added the formerly named defendants as well as Marcie Frost and Tim Behrens. (ECF No. 24.) 6 In granting plaintiff leave to file her Second Amended Complaint the court “again cautioned that 7 [plaintiff’s] Second Amended Complaint will render her former complaint non-existent, and 8 ‘Defendants not named or served and all claims not re-alleged in the [Second] Amended 9 Complaint will be deemed to have been waived.’” (ECF No. 22 at 2 quoting Lewis v. Mitchell, 10 416 F. Supp. 2d 935, 947 (S.D. Cal. 2005).) 11 After plaintiff filed her Second Amended Complaint, defendants filed their four motions 12 to dismiss. (ECF Nos. 25, 28, 29, 30.) Plaintiff filed two oppositions, which do not offer any 13 substantive discussion about the points raised by defendants, and plaintiff has not responded to 14 two of the motions to dismiss. (See ECF Nos. 31, 32.) Finally, plaintiff filed another motion to 15 amend her pleading and a Third Amended Complaint after defendants filed their pending motions 16 to dismiss. (ECF Nos. 33, 34.) 17 LEGAL STANDARD 18 In order to avoid dismissal for failure to state a claim a complaint must contain more than 19 “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause 20 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 21 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 23 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 24 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 25 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 26 U.S. at 678. 27 In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider 28 only allegations contained in the pleadings, exhibits attached to the complaint, and matters 1 properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 2 895, 899 (9th Cir. 2007). 3 DISCUSSION 4 The court will first address the motion to dismiss filed by defendants representing or 5 working for the Federal Government (“federal defendants”)3 (ECF No. 28.) 4 Due to the 6 similarity of their arguments, the court will then discuss the non-government defendants’ 7 (“individual defendants”) motions to dismiss together.5 8 A. FEDERAL DEFENDANTS’ MOTION TO DISMISS 9 The thrust of plaintiff’s claims against the federal defendants appears to be that they 10 violated 26 U.S.C. § 6103 by improperly disclosing her tax information, actionable against the 11 United States pursuant to 26 U.S.C. § 7431 or § 7433.6 (See ECF No. 24 at 4 (“The U.S. 12 Government has waived its sovereign immunity pursuant to 26 U.S.C. § 7431, which provides 13 taxpayers a cause of action for damages against the United States for knowing or negligent 14 unauthorized inspection of tax return information in violation of 26 U.S.C. § 6103”); id. at 2 15 (“The IRS defendants . . . repeatedly accessed and inspected the Plaintiff’s information in 16 violation of federal law that prohibits IRS agents from inspecting taxpayer information without

17 3 The federal defendants include the United States of America, Charles P. Rettig, Paul J. Enjalran, Gloria Sullivan, Miguel Torres, and Thomas D. Kramer. (ECF No. 28.) 18

19 4 It does not appear that defendants Kamal Kaur, Marcie Frost, or Tim Behrens have been served, and they have filed nothing in this matter. However, plaintiff’s claims against these defendants 20 are identical to her claims against defendants Marriot and Roughton, and therefore subject to dismissal for the same reasons. See Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 21 1981) (“A District Court may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving 22 defendants or where claims against such defendants are integrally related.”). 23 5 The Individual Defendants include (along with their respective motions): Sacramento County 24 Clerk Recorders Donna Allred and Kathy Knight (ECF No. 25); President and CEO of Schools Financial Credit Union Deposits Service Tim Marriot (ECF No. 29); and President and CEO of 25 Safe Credit Union Deposits Service Dave Roughton (ECF No. 30.)

26 6 Plaintiff’s claim that defendants violated the Financial Privacy Act, 12 U.S.C. § 3401 et seq., is 27 addressed by the court’s discussion of Title 26, as “[n]othing in this chapter prohibits the disclosure of financial records in accordance with procedures authorized by title 26.” 12 U.S.C. § 28 3413. 1 authorization.”).) 2 26 U.S.C. § 6103(a)(1) provides that “no officer or employee of the United States . . . shall 3 disclose any return or return information obtained by him in any manner in connection with his 4 service as such an officer or an employee or otherwise or under the provisions of this section.” 5 However, Section 6103(h)(1) creates an exception to this rule, providing that, “[r]eturns and 6 return information shall, without written request, be open to inspection by or disclosure to officers 7 and employees of the Department of the Treasury whose official duties require such inspection or 8 disclosure for tax administration purposes.” (emphasis added). 9 1. Individual Federal Defendants 10 The individual federal defendants move to dismiss plaintiff’s claims against them in their 11 individual and official capacities. 12 Regarding plaintiff’s official capacity claims, a plaintiff cannot maintain an action against 13 federal agents in their official capacities absent an explicit waiver of sovereign immunity. See 14 Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Plaintiff’s complaint, while citing to 15 statutes that permit actions against the United States, sets forth no authority permitting suit 16 against individual federal defendants in their official capacities. See e.g., 26 U.S.C. § 7431 (“If 17 any officer or employee of the United States knowingly, or by reason of negligence, inspects or 18 discloses any return or return information with respect to a taxpayer in violation of any provision 19 of Section 6103, such taxpayer may bring a civil action for damages against the United States”) 20 (emphasis added); accord 26 U.S.C. § 7433. Accordingly, plaintiff’s claims against the 21 individual federal defendants in their official capacities are facially improper and therefore 22 subject to dismissal. 23 Plaintiff’s claims against the individual federal defendants in their individual capacities 24 also fail. Plaintiffs can maintain suits against federal officials in their individual capacities where 25 the officials are alleged to have violated the Constitution while acting under color of federal 26 authority. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 391 (1971). However, actions 27 taken in relation to federal tax collection cannot support a Bivens claim. See Wages v. Internal 28 Revenue Service, 915 F.2d 1230, 1235 (9th Cir.1990), cert. denied, 498 U.S. 1096 (1991) (no 1 constitutional violation arises from the collection of taxes). 2 Here, plaintiff has not alleged any significant or specific facts to support a claim that the 3 individual federal defendants violated her constitutional rights that would allow her to maintain a 4 Bivens action against them. 5 Accordingly, plaintiff’s claims against the individual federal defendants in their official 6 and individual capacities are facially improper. The undersigned recommends these defendants 7 be dismissed from this matter without leave to amend. 8 2. United States 9 Regarding plaintiff’s claim against the United States, the court recommends dismissal 10 with leave to amend her complaint.7 Plaintiff’s present complaint is legally insufficient to give 11 the United States adequate notice of the claims against it and is therefore subject to dismissal. 12 It appears that plaintiff’s factual allegations are that federal employees improperly 13 disclosed her return information in relation to collection activities. (See ECF No. 24 at 11 14 (requesting release of liens filed against plaintiff’s property, and a release of all levies and 15 garnishments filed against plaintiff’s “financial bank institutions held by IRS Defendant Paul J. 16 Enjalran”).) Claims premised on improper disclosure of tax information in relation to collection 17 activities have to be brought pursuant to 26 U.S.C. § 7433. See Shwarz v. United States, 234 18 F.3d 428, 433 (9th Cir. 2000); see also Henkell v. United States, 1998 WL 41565, at *3 (E.D. 19 Cal. Jan. 9, 1998) (“[T]axpayers must rely on section 7433 to redress any injuries caused by 20 improper collection activity and/or procedural deficiencies in the lien process.”). Additionally, 21 Section 7433 requires parties to plead facts sufficient to show they exhausted their administrative 22 remedies. See 26 U.S.C. § 7433(d)(1); Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir. 23 1992) (failure to exhaust administrative remedies deprives the court of jurisdiction over § 7433 24 claims); Curfman v. United States, 2007 WL 2007496, at *4 (D.D.C. July 10, 2007) (finding 25 12(b) dismissal proper because plaintiffs did “not allege that they have attempted any 26 administrative remedies with the IRS”). 27 7 Plaintiff’s pending Third Amended Complaint suffers from the same deficiencies discussed 28 herein. 1 In the present case, plaintiff has not sufficiently pleaded her exhaustion of administrative 2 remedies. (See ECF No. 24 at 3 (“[Plaintiff] has attempted to exhaust and/or is in the process of 3 exhausting her administrative remedies with the IRS.”).) Plaintiff’s single sentence regarding 4 administrative remedies is insufficient to plead exhaustion. See Mark Moon, et al v. Cty. of 5 Orange, et al, 2019 WL 8108730, at *4 (C.D. Cal. Nov. 4, 2019) (finding plaintiff failed to plead 6 exhaustion whose complaint stated “[a]dministrative remedies have been exhausted and the 7 government code complied with”). Accordingly, plaintiff has failed to sufficiently plead a cause 8 of action premised on 26 U.S.C. 7433, as she has not addressed what administrative remedies she 9 has sought nor their present posture or outcome. 10 Additionally, the allegations plaintiff makes against the United States, contained in 11 plaintiff’s current complaint, which are generally consistent with her representations at oral 12 argument, are so devoid of factual assertions that they fail to put the United States on proper 13 notice, subjecting her complaint to dismissal. See Twombly, 550 U.S. at 555. 14 Due to plaintiff’s failure to plead exhaustion of administrative remedies, as well as her 15 complaint’s general lack of factual allegations, the undersigned recommends that plaintiff’s 16 complaint be dismissed against the United States. However, because it is unclear whether 17 amendment is futile, the court recommends that plaintiff be permitted to file an additional 18 amended complaint against the United States. As discussed in the hearing on this matter, plaintiff 19 is instructed to state the factual allegations underlying her claim in a plain and simple manner, 20 avoid lengthy citation to legal authorities, and succinctly outline the alleged wrongdoings that 21 entitle her to relief. 22 B. INDIVIDUAL DEFENDANTS’ MOTION TO DISMISS 23 All individual defendants assert that plaintiff’s complaint fails to allege sufficient facts to 24 put them on proper notice. (ECF Nos. 25-1 at 4; 29 at 5; 30-1 at 4.) Additionally, in their 25 separate motions to dismiss, defendants Marriott and Roughton argue that even if liberally 26 construed plaintiff’s complaint would still fail because they are immune from suit pursuant to 26 27 U.S.C. §6332(e). (ECF Nos. 29 at 7; 30-1 at 4.) Defendants Allred and Knight argue they are 28 immune pursuant to California Code of Civil Procedure § 2103. (ECF No. 25-1 at 4-5.) All of 1 individual defendants’ arguments have merit. 2 1. Plaintiff’s complaint lacks sufficient factual allegations against individual defendants. 3 The individual defendants are correct that plaintiff’s complaint does not give them 4 sufficient notice as to plaintiff’s claims and lacks adequate factual assertions against them. A 5 complaint must give the defendant “fair notice of what the . . . claim is and the grounds upon 6 which it rests.” Twombly, 550 U.S. at 555. 7 The entirety of the factual assertions against each individual defendant are as follows: 8 “[Individual defendants] have injured Plaintiff Mary A. Nelson Rogers by fraud” (ECF No. 24 at 9 2-3); and “[Individual defendants] are sued in their individual capacity for acts and omissions 10 occurring in connection with duties performed on behalf of the U.S. Government.” (Id. at 9.) 11 While plaintiff occasionally references “defendants” in her complaint, there are no specific 12 allegations against the individual defendants that place them on notice of what exactly plaintiff is 13 alleging. These deficient assertions against the individual defendants are nothing more than bare 14 declarations that are subject to dismissal. See Twombly, 550 U.S. at 556 (2007). Thus, 15 plaintiff’s complaint should be dismissed against the individual defendants for failing to give 16 them fair notice of her claim(s). 17 2. The individual defendants are statutorily immune from suit. 18 The undersigned finds that any amendment by plaintiff regarding the individual 19 defendants would be futile. As to defendants Roughton and Marriott, they are immunized by 20 Section 6322(e), which provides:

21 Any person in possession of (or obligated with respect to) property or rights to 22 property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such 23 obligation) to the Secretary . . . shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or 24 rights to property arising from such surrender or payment.

25 26 26 U.S.C. § 6332(e) (emphasis added); see also Farr v. United States, 990 F.2d 451, 456 (9th Cir. 27 1993) (noting that the provision of immunity is broadly interpreted). 28 //// 1 Plaintiff’s complaint alleges only that her accounts were levied by the government. Thus, 2 it is implausible that plaintiff could allege anything against these two defendants—who plaintiff 3 alleges are President/CEOs of financial institutions—which would not be subject to dismissal 4 under 26 U.S.C. § 6332(e), as all these defendants could have done was record tax levies as 5 required by statute. Thus plaintiff’s complaint against defendants Roughton and Marriott should 6 be dismissed without leave to amend. 7 Regarding defendants Allred and Knight, who are county recorders, they too are immune 8 from suit. California Code of Civil Procedure § 2103 provides that “[i]f a notice of federal lien ... 9 is presented to a filing officer who is ... [a] county recorder, he or she shall accept for filing, file 10 for record in the manner set forth in Section 27320 of the Government Code, and index the 11 document[.]” (emphasis added). Accordingly, even if plaintiff provided additional factual 12 allegations against Allred and Knight, an amended complaint against them would be subject to 13 dismissal as they are required by law to record federal tax liens. See White v. Wharff, 2007 WL 14 196676, at *5 (N.D. Cal. Jan. 24, 2007) (“The complaint fails to state a claim against [defendant] 15 because she properly recorded the federal tax lien in accordance with the requirements of her 16 job.”). Plaintiff’s complaint against defendants Allred and Knight should therefore be dismissed 17 without leave to amend. 18 Accordingly, the undersigned recommends dismissal of the individual defendants without 19 leave to amend. 20 C. MOTION TO AMEND 21 Finally, plaintiff has also filed a motion to amend and a proposed Third Amended 22 Complaint. (ECF Nos. 33, 34.) Plaintiff asserts that she should be given leave due to the 23 “relation back” doctrine, and that her Third Amended Complaint “will address subject matter 24 jurisdiction and give rise to the more definite statement alleged against defendants Tim Marriott, 25 Dave Roughton, Gloria Allred, and K. Knight.” (ECF No. 33 at 2.) 26 However, plaintiff’s Third Amended Complaint does not address the deficiencies 27 described above. Again, her complaint only mentions the individual defendants twice, and 28 generally lacks factual assertions. (See ECF No. 34.) The complaint also does not address any of 1 the defects as to the federal defendants. (See id.) Accordingly, while the undersigned 2 recommends granting plaintiff leave to amend as to the United States, the presently filed Third 3 Amended Complaint does not remedy the problems addressed above. Therefore, the undersigned 4 will deny plaintiff’s presently filed motion to amend. (ECF No. 33.) 5 CONCLUSION 6 For the reasons above, the undersigned recommends dismissing plaintiff’s complaint in its 7 entirety, but allowing plaintiff leave to amend as to the United States. 8 Accordingly, it is HEREBY RECOMMENDED that: 9 1. Defendants’ motions to dismiss (ECF Nos. 25, 28, 29, 30) be GRANTED. 10 2. Plaintiff’s complaint be DISMISSED against the United States, but with leave to 11 amend. 12 3. Plaintiff’s complaint be DISMISSED against the remaining named defendants 13 without leave to amend and with prejudice. 14 4. Plaintiff’s presently filed motion to file an amended complaint (ECF No. 33) be 15 DENIED. 16 5. Within 21 days of the district judge’s order plaintiff be required to file an amended 17 complaint against the United States addressing the deficiencies outlined in these Findings 18 and Recommendations. This complaint shall be captioned “Fourth Amended Complaint.” 19 If plaintiff finds that she cannot remedy the deficiencies outlined above she shall file a 20 notice of dismissal. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 ///// 26 ///// 27 ///// 28 ///// 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 3 | Yist, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: March 18, 2020 f° Lf i, / CAN fu fl. ay CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 16.1564.rogers mtd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11