United States District Court, D. Hawaii
JANIS L. COX, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER: (1) GRANTING MOTION TO DISMISS, ECF NO. 20;
AND (2) DENYING AS MOOT PLAINTIFF'S REQUEST FOR DIRECTED
VERDICT AND SUMMARY JUDGMENT, ECF NO. 31
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
January 3, 2017, pro se Plaintiff Janis L. Cox
(“Plaintiff”) filed a Complaint against the
United States of America; the Internal Revenue Service
(“IRS”), Revenue Officer Kelly Gurney
(“Gurney”); the Department of Justice Civil Tax
Division (“DOJ”); Tax Inspector General Tax
Administration (“TIGTA”); the United States
Senate; and the United States House of Representatives
(collectively, “Defendant”). On March 14,
2017, Defendant filed a Motion to Dismiss for lack of
subject-matter jurisdiction and failure to state a plausible
claim for relief. ECF No. 20. And on May 11, 2017, Plaintiff
filed a Request for Directed Verdict and Summary Judgment.
ECF No. 31. Based on the following, the court GRANTS
Defendant's Motion to Dismiss, and DENIES Plaintiff's
Request for Directed Verdict and Summary Judgment as moot.
alleged in the Complaint, on June 1, 2016, IRS revenue
officer Gurney issued a Notice of Levy on Plaintiff's
social security income. The Notice of Levy was issued because
of a $423, 856.38 debt that Plaintiff allegedly owed, as of
July 1, 2016, for unpaid income taxes for tax periods
2001-2010. Compl. at PageID #69, ECF No. 1-1; Notice of Levy,
ECF No. 1-4; Gurney Correspondence, ECF No. 1-6. The
Complaint also references $60, 000 that was
“fraudulently confiscated by the IRS and DOJ, ”
the IRS' seizure of Plaintiff's home in San Antonio,
Texas in 2008, and the subsequent sale of that home for
“$249, 000” at an “IRS auction.”
Compl. at PageID #78.
from those brief factual allegations, the nearly eighty-page
Complaint is primarily devoted to explaining Plaintiff's
belief that the entire IRS tax assessment and collection
scheme is illegal and that she is immune from having to
paying taxes. To support her position, the Complaint asserts
numerous opinions, assumptions, conclusory allegations, and
pronouncements as “facts.” And interspersed
throughout the Complaint are references to a host of federal
statutes and regulations that purportedly provide authority
for Plaintiff's challenge to the overall tax system
and/or that Defendant has violated in furtherance of the
alleged illegal tax assessment and collection scheme.
seeks (1) injunctive relief requiring the IRS to revoke the
levy and to stop continued collection efforts; (2) damages of
“$100, 000 for pain and suffering, ” $10, 000 for
“court costs and legal research, and additional
unspecified compensatory damages;” (3) a refund of $60,
000 that was “fraudulently confiscated by the IRS and
DOJ;” (4) a refund of “$249, 000 for [her] house
. . . in San Antonio, Texas . . . [that was] seized in
February 2008 . . . and sold at IRS auction;” and (5)
prosecution of the criminal acts alleged in the Complaint.
Compl. at PageID #77-78.
filed her Complaint on January 3, 2017. ECF No. 1. On March
10, 2017, Plaintiff filed a First Addendum to
Complaint. ECF No. 18. On March 14, 2017, Defendants
filed the instant Motion to Dismiss. ECF No. 20. On March 30,
2017, Plaintiff filed a document titled
“Plaintiff's Opposition Memorandum . . . Motion to
Strike[, ] Motion for Summary Judgment[, and] Motion for
Directed Verdict.” ECF No. 24. On March 31, 2017, this
court denied the Motion to Strike, and denied without
prejudice the Motions for Summary Judgment and Directed
Verdict (the “March 31 Order”). ECF No. 25. On
April 3, 2017, Plaintiff filed a document titled
“Evidence and Proof, ” in support of her Motion
to Strike and Motions for Summary Judgment and Directed
Verdict. ECF No. 26. The court construed this document as a
motion for reconsideration of the March 31 Order, and denied
reconsideration on April 4, 2017 (the “April 4
Order”). ECF No. 27.
April 6, 2017, the Government filed its Reply. ECF No. 28.
Plaintiff filed an additional Memorandum in Opposition on
April 10, 2017. ECF No. 29. On April 17, 2017, Plaintiff
filed a Response to the Government's Reply and to this
court's April 4 Order. ECF No. 29. And on May 11, 2017,
Plaintiff filed a Request for Directed Verdict and Summary
Judgment. ECF No. 31.
to Local Rule 7.2(d), the court finds these matters suitable
for disposition without a hearing.
STANDARDS OF REVIEW
Rule of Civil Procedure 12(b)(1) authorizes a court to
dismiss claims over which it lacks proper subject-matter
jurisdiction. The moving party “should prevail [on a
Rule 12(b)(1) motion to dismiss] only if the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law.”
Casumpang v. Int'l Longshoremen's &
Warehousemen's Union, 269 F.3d 1042, 1060-61 (9th
Cir. 2001) (citation and quotation marks omitted); Tosco
Corp. v. Cmtys. for a Better Env't, 236 F.3d 495,
499 (9th Cir. 2001).
12(b)(1) motion may be either facial or factual. Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). In a facial attack such as the case here, the court
may dismiss a complaint when the allegations of and documents
attached to the complaint are insufficient to confer
subject-matter jurisdiction. See Savage v. Glendale Union
High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th
Cir. 2003). When determining whether subject-matter
jurisdiction exists, all allegations of material fact are
taken as true and construed in the light most favorable to
the nonmoving party. Fed'n of African Am. Contractors
v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996).
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be
granted.” A Rule 12(b)(6) dismissal is proper when
there is either a “‘lack of a cognizable legal
theory or the absence of sufficient facts
alleged.'” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Weber v. Dep't of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet
--that the court must accept as true all of the allegations
contained in the complaint -- “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Twombly,
550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a
complaint or counterclaim may not simply recite the elements
of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.”).
Pro Se Pleadings
Plaintiff is proceeding pro se, the court liberally construes
his Complaint. See Erickson v. Pardus, 551 U.S. 89,
94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 1987) (per curiam). The court also recognizes that
“[u]nless it is absolutely clear that no amendment can
cure the defect . . . a pro se litigant is entitled to notice
of the complaint's deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995);
see also Crowley v. Bannister, 734 F.3d 967, 977-78
(9th Cir. 2013). A court may, however, deny leave to amend
where further amendment would be futile. See, e.g.,
Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522,
532 (9th Cir. 2008) (reiterating that a district court may
deny leave to amend for, among other reasons “repeated
failure to cure deficiencies by amendments previously allowed
. . . [and] futility of amendment”).
claims against Defendant concern the alleged improper
assessment and collection of taxes. The authorities
referenced in the Complaint to support both subject-matter
jurisdiction and Plaintiff's claims include: 18 U.S.C.
§§ 4, 872, 1341; 26 U.S.C. §§ 3402, 6331,
7214, 7422, 7433 (as amended by the IRS Restructuring and
Reform Act of 1998 (“RRA”)), 7491, 7802, 7804; 28
U.S.C. § 1346(a)(1); the Federal Tort Claim Act
(“FTCA”), 28 U.S.C. §§ 1346(b),
2671-80; 42 U.S.C. §§ 1981-83; the First, Fourth,
Fifth, and Fourteenth Amendments to the United States
Constitution; and 26 C.F.R. § 301.6330. See
Compl. at PageID # 6-8, 11, 14, 21-22, 32.
seeks dismissal of Plaintiff's claims, arguing that
Plaintiff failed to establish subject-matter jurisdiction
and/or failed to state a plausible claim for relief. The
court agrees. For the reasons discussed below, Plaintiff has
failed to establish that Defendant waived its sovereign
immunity or that jurisdiction is proper under these