Zhang v. Internal Revenue Service

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHI MIN ZHANG, Case No. 1:24-cv-0667 JLT BAM 12 Plaintiff, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. THE GOVERNMENT’S MOTION TO DISMISS, AND DISMISSING PLAINTIFF’S 14 INTERNAL REVENUE SERVICE, COMPLAINT WITHOUT PREJUDICE 15 Defendant. (Doc. 13) 16 17 Shi Min Zhang, proceeding pro se, filed this action against the Internal Revenue Service 18 for alleged negligent and harassing practices over the last eight years. (Doc. 1.) The Government 19 filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 20 12(b)(6). (Doc. 7.) 21 The magistrate judge found that “Plaintiff has not exhausted the administrative remedies 22 required to waive sovereign immunity, invoke this Court’s jurisdiction, and bring a claim under 23 26 U.S.C. § 7422.” (Doc. 13 at 7.) Similarly, the magistrate judge found Plaintiff had not 24 “complied with the requirements of § 7433(d)(1) by exhausting administrative remedies before 25 filing suit,” and did not invoke this Court’s jurisdiction under that provision.” (Id. at 8.) Further, 26 the magistrate judge found “even if [the Court] had jurisdiction, which it does not, Plaintiff fails 27 to state a cognizable claim upon which relief may be granted.” (Id. at 9.) The magistrate judge 28 found the pleading deficiencies identified could not be cured. (Id.) Therefore, the magistrate 1 | judge recommended the Government’s motion to dismiss be granted and the complaint be 2 | dismissed with prejudice. (d.) 3 The Court served the Findings and Recommendations on all parties and notified them that 4 | any objections were due within 14 days. (Doc. 13 at 9.) The Court also informed the parties that 5 | the “failure to file objections within the specified time may result in the waiver of the ‘right to 6 | challenge the magistrate’s factual findings’ on appeal.” (Ud. at 10, quoting Wilkerson v. Wheeler, 7 | 772 F.3d 834, 839 (9th Cir. 2014).) Neither Plaintiff nor the Government filed objections, and the 8 | time to do so has passed. 9 According to 28 U.S.C. § 636 (b)(1), this Court performed a de novo review of the case. 10 || Having carefully reviewed the entire matter, the Court concludes the finding that the Court lacks 11 } jurisdiction over the action is supported by the record and proper analysis. Likewise, the Court 12 | agrees that Plaintiff fails to state a cognizable claim. However, based upon the initial finding that 13 the Court lacks jurisdiction, the Court finds dismissal without prejudice is proper. See Kelly v. 14 | Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (“because the district court lacked 15 | subject matter jurisdiction, the claims should have been dismissed without prejudice”); Missouri 16 | ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (the proper dismissal for lack of 17 | jurisdiction “is without prejudice”). Accordingly, the Court ORDERS: 18 1. The Findings and Recommendations issued on November 21, 2024 (Doc. 13) are 19 adopted in part. 20 2. The Government’s motion to dismiss (Doc. 7) is GRANTED. 21 3. Plaintiff's complaint is DISMISSED without prejudice, due to lack of jurisdiction. 22 4. The Clerk of Court is directed to close this case. 23 IT IS SO ORDERED. Dated: _ December 22, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 26 27 28