McNeil v. Barton et al

Filing 14

OPINION AND ORDER granting defts' 8 Motion to Dismiss; McNeil's complaint is dismissed with prejudice. Signed by Judge J. Leon Holmes on 8/21/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
MINOR L. MCNEIL
v.

PLAINTIFF
No. 4:12CV00152 JLH

G. CHAD BARTON; DAVID LARO;
JOHN O. COLVIN; and JOHN/JANE DOES #1-15

DEFENDANTS

OPINION AND ORDER
Minor L. McNeil commenced this action on March 8, 2012, against G. Chad Barton, David
Laro, John O. Colvin, and John/Jane Does #1-15. McNeil alleges that Barton was a contractor for
the Commissioner of Internal Revenue who pretended to have the power to represent the
Commissioner of Internal Revenue in tax court when in fact he had no such power. McNeil alleges
that Colvin and Laro pretend to be judges in the United States Tax Court when no such court has
been established by Congress and neither has been appointed to any such office. He alleges that
Barton, Laro, and Colvin have engaged in a criminal collusion with John and Jane Does in the Internal
Revenue Service to create false writings in order to make a colorable pretense that McNeil’s tax
return was in error and that a tax debt was due and payable during 2006 and the ensuring years.
The defendants have moved to dismiss the complaint for lack of jurisdiction because the suit
is barred by sovereign and official immunity. They request the Court to take judicial notice of the tax
court docket, pleadings, and statements in the Eighth Circuit’s opinion showing that Judge Colvin
and Judge Laro are United States Tax Court judges and that IRS counsel Barton represented the IRS
as its attorney. The Court can and will take judicial notice of the official records and the docket of
the United States Tax Court, as well as the official records of the United States Court of Appeals for
the Eighth Circuit. See Fed. R. Evid. 201; Stutzka v. McCarville, 420 F.3d 757, 763 (8th Cir. 2005)
(a court “may take judicial notice of judicial opinions and public records” (citing United States v.

Eagleboy, 200 F.3d 1137, 1140 (8th Cir. 1999))); Auto-Owners Ins. Co. v. Tuggle, 289 F. Supp. 2d
1061, 1066 (W.D. Ark. 2003) (a court may take judicial notice of another court’s docket entries);
see also United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (collecting circuit authorities
for the preposition that a court may take judicial notice of another court’s litigation record and
filings).
The records of the tax court reflect that Minor L. McNeil filed a petition against the
Commissioner of the Internal Revenue Service and the United States Tax Court, and the action was
docketed as No. 004176-10. Gary C. Barton of Oklahoma City, Oklahoma, was counsel for the
Commissioner in that action. The address for Gary C. Barton on the docket of the tax court is the
same as the address for G. Chad Barton, one of the defendants in this action. John O. Colvin, Chief
Judge of the United States Tax Court, entered an order directing the petitioner to file a proper
amended petition and pay a filing fee. In January of 2011, a trial was held in Little Rock, Arkansas,
before Judge Laro, who is a senior judge with the United States Tax Court. On January 28, 2011,
Judge Laro entered a memorandum opinion in which he stated that McNeil had advanced a number
of frivolous claims in his petition, at trial, and in his brief. Ultimately, Judge Laro found that all of
the arguments made by McNeil were irrelevant, moot, or without merit. On January 30, 2011, Judge
Laro entered a decision pursuant to his memorandum opinion stating that McNeil owed additional
taxes and penalties for tax years 2006 and 2007.
McNeil appealed to the United States Court of Appeals for the Eighth Circuit. His appeal was
docketed as No. 11-2520. On January 10, 2012, the Eighth Circuit entered a per curiam opinion
affirming the decision of the Tax Court and denying pending motions by McNeil. McNeil filed a

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motion for reconsideration, which was denied on February 29, 2012. McNeil then commenced this
action on March 8, 2012.
It is apparent that McNeil is continuing to challenge the decision of the Tax Court. Although
he alleges in his complaint that Barton merely pretends to have the power to represent the
Commissioner of the Internal Revenue in Tax Court and that Judge Colvin and Judge Laro falsely
pretend to be judges, the Court takes judicial notice of the records of the Tax Court and the Eighth
Circuit, which are described above, and which show that these allegations are false and frivolous.
McNeil’s claims against the defendants in their official capacities are barred by sovereign
immunity. Claims against governmental officials in their official capacities are claims against the
United States. Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998). It is well-established that
the “United States can only be sued when it has expressly given its consent to be sued.” Coleman
v. Espy, 986 F.2d 1184, 1189 (8th Cir. 1993) (collecting Supreme Court decisions). Thus,
“[s]overeign immunity bars claims against federal officials in their official capacity unless a waiver is
unequivocally expressed by Congress.” Id. (citing United States v. Mitchell, 445 U.S. 535, 538, 100
S. Ct. 1349, 1351, 63 L. Ed. 2d 607 (1980)). McNeil does not, and cannot, show that Congress has
waived the United States’ sovereign immunity vis-a-vis claims like his. Rather, McNeil claims that
the Tax Court does not exist and that Barton, Judge Colvin, and Judge Laro are merely pretending
to be government officials. As explained above, however, the Court takes judicial notice of records
establishing that Judge Colvin and Judge Laro are judicial officers of the United States Tax Court and
that Barton is an attorney for the Commissioner. Therefore, McNeil’s official capacity claims are
barred by sovereign immunity and must be dismissed.

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McNeil’s claims against Judge Colvin and Judge Laro in their individual capacities also must
be dismissed. With two exceptions, a judge is immune from suit. Schottel v. Young, 687 F.3d 370
(8th Cir. 2012) (citing Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9
(1991)). A judge is not immune for nonjudicial actions or for judicial actions taken in the complete
absence of all jurisdiction. Here, McNeil does not offer allegations falling under either of these two
exceptions. Rather, he alleges that Judge Colvin and Judge Laro are not real judges. Again,
however, the Court takes judicial notice that Judge Colvin and Judge Laro are judicial officers of the
United States Tax Court. Consequently, Judge Colvin and Judge Laro are immune from suit.
Finally, McNeil’s claims against Barton in his official capacity must be dismissed based on
official immunity or qualified immunity. “It has long been held that governmental officials have an
absolute privilege, immunizing them from civil damage suits arising out of acts committed within the
scope of their official functions.” Ahlstrand v. Lethert, 319 F. Supp. 283, 284 (D. Minn. 1970)
(dismissing a pro se complaint brought against IRS employees). Because the Court takes judicial
notice that Barton is an attorney for the Commissioner, he is entitled to official immunity.
Alternatively, qualified immunity shields public officials from liability for civil damages if “their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, L. Ed.
2d 396 (1982). McNeil alleges that Barton was not authorized to act as an attorney on behalf of the
Commissioner and, therefore, that his actions were “fraudulent.” McNeil does not allege that Barton
engaged in any conduct that would violate McNeil’s violate “clearly established statutory or
constitutional rights” if, in fact, Barton was an attorney authorized to act on behalf of the

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Commissioner.

Because the Court takes judicial notice that Barton is an attorney for the

Commissioner, it follows that he is entitled to qualified immunity.
For these reasons, the defendants’ motion to dismiss is GRANTED. Document #8. McNeil’s
complaint is dismissed with prejudice.
IT IS SO ORDERED this 21st day of August, 2012.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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