Uptergrove et al v. United States of America et al

Filing 16

Memorandum decision granting 10 Motion to Dismiss for Lack of Jurisdiction, signed by Judge Oliver W. Wanger on 4/17/09. (Coffman, Lisa)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION v. UNITED STATES OF AMERICA, UNITED STATES ATTORNEY MCGREGOR W. SCOTT, TRIAL ATTORNEY G. PATRICK JENNINGS, U.S. MARSHALS OFFICE, MARILYN COLLINS, DOES 1-100, Defendants. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CHARLES WAYNE UPTERGROVE, MARTHA GENE UPTERGROVE, Plaintiffs, 1:08-CV-01800-OWW-SMS MEMORANDUM DECISION GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. 10-2)

Plaintiffs Charles Wayne Uptergrove and Martha Gene Uptergrove (collectively "Plaintiffs"), appearing pro se, filed suit against the United States of America ("United States"), United States Attorney McGregor Scott ("Scott"), Trial Attorney G. Patrick Jennings with the Tax Division of the United States Department of Justice ("Jennings"), the United States Marshals Office ("U.S. Marshals"), Internal Revenue Service ("IRS") employee Marilyn Collins ("Collins"), and Does 1-100 (collectively "Defendants"). The complaint brought under 42

U.S.C. § 1983 alleges that Defendants violated Plaintiffs' Seventh Amendment rights. Plaintiffs seek no damages, but 1

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request "equitable relief and injunctive relief against defendants permanently restraining them from seizing and selling" their home. (Doc. 1, Compl. at p. 13.)

Before the court for decision is Defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The United States asserts that each defendant is entitled to immunity from suit. the court. Plaintiffs have not filed an opposition with

Instead, Plaintiffs mailed a copy of their opposition

to the Fresno IRS office, which forwarded the opposition to Defendants. Defendants attached Plaintiffs' opposition to their (Doc. 12.)

reply brief, filed April 3, 2009, as Exhibit "A."

Oral argument was heard on April 13, 2009; Plaintiffs did not appear.

II.

BACKGROUND

Plaintiffs' claim arises from facts relating to two prior lawsuits. (Compl. ¶ 1.) The first lawsuit, In re Charles

Uptergrove, DBA Urc Trucking, No. LA 88-14691-NRR, involving Plaintiff Charles Wayne Uptergrove ("Charles"), began as a Chapter 7 bankruptcy proceeding, but was later converted to a Chapter 11 bankruptcy proceeding. (Id.) In the second lawsuit,

United States v. Uptergrove, No. 1:06-CV-01630-AWI-LJO (E.D. Cal. Sept. 24, 2008) ("Uptergrove I"), the United States sought to reduce Plaintiffs' federal tax liabilities to judgment and foreclose on real property owned by them. (Doc. 10-2 at 2.) Due

to Plaintiffs' refusal to cooperate during discovery, the 2

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district court ordered sanctions and warned Plaintiffs that failure to comply with the order could result in a default judgment. (Id.) Plaintiffs did not comply with the order and a

default judgment was subsequently entered, ordering the sale of real property to satisfy unpaid federal tax liabilities and unpaid sanctions. the Ninth Circuit. (Id.) (Id.) Uptergrove I is currently on appeal to

Plaintiffs allege here that in bringing Uptergrove I, Scott and Jennings "intentionally, knowingly, willfully, falsified factual allegations against [Plaintiff] Martha Uptergrove in which they falsely alleged that she was owner, operator, or employee, of a business called Ikon Roofing, and owed taxes from income relating to said business . . . ." (Compl. ¶ 2.)

Plaintiffs allege that Martha Gene Uptergrove ("Martha") was not involved with Ikon Roofing, rather, she was employed by the Madera Water District. (Compl. ¶ 3.) Martha alleges that she

was terminated from the Madera Water District due to the alleged unlawful levying from her paycheck by the IRS. (Id.) Martha

does not seek damages for the alleged termination. Plaintiffs further allege that IRS Agent Collins falsely represented that Martha was an owner of Ikon Roofing. 4, 5.) (Compl. ¶¶

Plaintiffs allege that Collins' false statement prompted

the IRS to issue a wage levy order to Martha's employer, and the seizing of Charles's property. (Compl. ¶ 5.) Plaintiffs also

allege that Defendant United States "intentionally omitted [and] excluded . . . evidence . . ." in Uptergrove I. (Compl. ¶ 10.)

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1 2 3 A.

III.

STANDARD OF DECISION

Subject Matter Jurisdiction - Fed. R. Civ. Proc. 12(b)(1)

A court may only exercise subject matter jurisdiction in an 4 action against the Federal Government where (1) a statutory 5 authority vests the district court with subject matter 6 jurisdiction; and (2) the United States has waived its sovereign 7 immunity. 8 1008, 1016 (9th Cir. 2007). 9 the action is required." 10 1322, 1327 (9th Cir. 1982). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Failure to State a Claim - Fed. R. Civ. Proc. 12(b)(6) Hutchinson v. United States, 677 F.2d "Absent consent to sue, dismissal of See Alvarado v. Table Mountain Rancheria, 509 F.3d

Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails "to state a claim upon which relief can be granted." In deciding whether to

grant a motion to dismiss, the court must "accept all factual allegations of the complaint as true and draw all reasonable inferences" in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead `enough facts to state a claim to relief that is plausible on its face.'" Weber v. Dep't of Veterans Affairs, 521 F.3d 1061 (9th Cir. 2008) (citing Bell Atl. v. Twombly, 550 U.S. 544; 127 S. Ct. 1955 (2007) (rejecting interpretation of Rule 8 that permits dismissal only when the plaintiff can prove "no set of facts" in support of his claim). A court is not "required to accept as true 4 "To

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allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Something "more

Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

than labels and conclusions" is needed to provide the grounds for relief. Bell Atl., 127 S. Ct. at 1965 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)). The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v.

United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). Matters of public record may be considered, including pleadings, orders, and other papers filed with the court of records of administrative bodies. See Mack v. South Bay Beer Distrib., Allegations in the

Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. 988. Sprewell, 266 F.3d at

When ruling on a motion to dismiss, the court may consider

facts alleged in the complaint, documents attached to the complaint when authenticity is not contested, and matters of which the court may take judicial notice. 146 F.3d 699, 705-06 (9th Cir. 1988). Pro se complaints are held to less stringent standards than formal pleadings by lawyers. (1972). Haines v. Kerner, 404 U.S. 519, 520 Parrino v. FHP, Inc.,

A court must construe a pro se plaintiff's "inartful

pleading" liberally in determining whether a claim has been stated, including pro se motions as well as complaints. Zichko

v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). This is especially true Ferdik

when a plaintiff appears pro se in a civil rights case. 5

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v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

"Dismissal of

a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." 1203-04 (9th Cir. 1988). Schucker v. Rockwood, 846 F.2d 1202,

IV. A.

DISCUSSION

Collateral Attack / Anti-Injunction Act

Defendants argue that "Plaintiffs' Complaint is an attempt to collaterally [attack] the judgment entered against them in [Uptergrove I]." (Doc. 10-2 at 2.) In Uptergrove I, the United

States sought to reduce Plaintiffs' federal tax liabilities to judgment and foreclose on real property owned by Plaintiffs. (Id.) Due to Plaintiffs' refusal to cooperate during discovery,

the district court ordered sanctions and warned Plaintiffs that failure to comply with the order could result in a default judgment. (Id.) Plaintiffs did not comply with the order and a

default judgment was subsequently entered, ordering the sale of real property to satisfy unpaid federal tax liabilities and unpaid sanctions. the Ninth Circuit. (Id.) (Id.) Uptergrove I is currently on appeal to

"The collateral attack doctrine precludes litigants from collaterally attacking the judgments of other courts." Rein v.

Providian Fin. Corp., 270 F.3d 895, 902 (9th Cir. 2001) (citing Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995)). States Supreme Court made clear: [I]t is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, 6 The United

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either by itself or by a higher court, its orders based on its discretion are to be respected. Celotex, 514 U.S. at 313 (quoting Walker v. Birmingham, 388 U.S.

3 307, 314 (1967)(quotations omitted). 4 This case is a collateral attack upon Uptergrove I because 5 the only relief sought here by Plaintiffs is equitable and 6 injunctive relief to restrain Defendants from "seizing and 7 selling the property" at issue in Uptergrove I. 8 3.) 9 Plaintiffs argue that a judicially created exception to the 10 Anti-Injunction Act permits them to collaterally attack the prior 11 judgment. 12 § 7421(a), bars lawsuits aimed at restraining the assessment or 13 collection of taxes.2 14 the Anti-Injunction Act, as provided in Enochs v. Williams 15 Packing & Navigation Co., Inc., 370 U.S. 1, 7 (1962), allows them 16 to collaterally attack the judgment in Uptergrove I. 17 at 14, 17.) 18 Enochs permits a lawsuit to enjoin collection of taxes if: 19 (1) "under no circumstances could the Government ultimately 20 prevail;" and (2) the taxpayer will suffer irreparable injury 21 without injunctive relief. 22 23 24 25 26 27 28 The Anti-Injunction Act reads in pertinent part: "Except as provided . . . no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S.C. § 7421(a). 7
2 1

(Doc. 10-2 at

(Doc. 12-2 at 7.)1

The Anti-Injunction Act, 26 U.S.C.

Plaintiffs contend that an exception to

(Doc. 12-2

Enochs, 370 U.S. at 7; see also Bob

Plaintiffs' arguments are derived from their opposition submitted to the court via Defendants' reply brief. (See Doc. 12, Exhibit "A".)

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Jones Univ. v. Simon, 416 U.S. 725, 742-46 (1974); Elias v. Connett, 908 F.2d 521, 525 (9th Cir. 1990). A plaintiff has the

burden of pleading and proving facts to show that the government cannot ultimately prevail. 29 (1976). Comm'r v. Shapiro, 424 U.S. 614, 628-

The Enochs exception, however, is only applicable

during the pendency of the original tax collection action, i.e., Uptergrove I, and is only triggered when the government cannot ultimately prevail. See Enochs, 370 U.S. at 7 (discussing the

exception in terms of the underlying tax collection action, i.e., the original proceeding). Plaintiffs cannot assert the Enochs

exception here because the government did prevail in Uptergrove I (the original tax collection action), making it impossible for them to establish that the government could not prevail in that case. Plaintiffs cannot use this lawsuit to collaterally attack the judgment in Uptergrove I. While an appeal is pending, the

district court's judgment is the law of the case unless and until reversal by the Court of Appeals. See Celotex, 514 U.S. at 313.

Accordingly, the relief Plaintiffs seek, an injunction against foreclosure of their home, is barred. As to this form of relief,

Defendants' motion to dismiss is GRANTED WITH PREJUDICE. Even if Plaintiffs sought damages or other forms of relief, the analysis below reveals that any such claims are also barred.

B.

Section 1983 Claim

Plaintiffs' complaint alleges a "Title 42 § 1983" claim against the United States, Scott, Jennings, the U.S. Marshals Office, and Collins. Each of these defendants is either a 8

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federal entity or an employee of a federal agency. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983 (emphasis added). Section 1983 "deals only with

9 those deprivations of rights that are accomplished under the 10 color of `any State or Territory.'" 11 409 U.S. 418, 424 (1973). 12 "actions of the Federal Government and its officers[, they] are 13 at least facially exempt from its proscriptions." 14 see also Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1200 (9th 15 Cir. 1975)(finding a § 1983 action against federal officials 16 improper). 17 deprivations of civil rights under Bivens v. Six Unknown Named 18 Agents, 403 U.S. 388, 397 (1971). 19 named defendants are, for the reasons set forth below, immune 20 from suit. 21 22 C. 23 The United States argues that each defendant is immune from 24 suit. 25 1. 26 Defendant United States contends that, as a sovereign, it is 27 immune from suit. 28 9 (Doc. 10-2 at 5.) A court may exercise United States (Doc. 10-2.) Defendants' Immunities Here, however, all of the Federal officials may be subject to suit for Id. at 424-25; Section 1983 does not apply to Dist. of Columbia v. Carter,

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subject matter jurisdiction in an action against the United States where (1) a statutory authority vests the district court with subject matter jurisdiction; and (2) the United States has waived its sovereign immunity. See Alvarado v. Table Mountain

Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). "The United States is a sovereign and, as such, is immune from suit without its prior consent." Hutchinson, 677 F.2d at

1327 (citing United States v. Shaw, 309 U.S. 495, 500-01 (1940)). Here, Plaintiffs identify no statutory authority waiving the United States' sovereign immunity, nor does the record indicate that the United States has otherwise waived its immunity. As to defendant United States, Defendants' motion to dismiss for lack of subject matter jurisdiction is GRANTED WITH PREJUDICE. 2. U.S. Marshals Office

Defendants argue that the "U.S. Marshals," as an agency of the sovereign, is also immune from suit. "[S]overeign immunity Fed.

shields the Federal Government and its agencies from suit."

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (emphasis added). As an agency of the United States, the U.S. Marshals Delgado v. Detention

Service, is entitled to sovereign immunity.

Center, 839 F. Supp. 345, 346 (E.D. Pa. 1993); see also Komongnan v. U.S. Marshals Service, 471 F. Supp. 2d 1, 4 (D. D.C. 2006) (dismissing action against U.S. Marshals Service in a Bivens action because, as an agency of the United States, the U.S. Marshals are immune from suit). Plaintiffs have not alleged, and

the record does not indicate, that the U.S. Marshals have consented to suit, which leaves the U.S. Marshals' immunity 10

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intact. Defendants' motion to dismiss for lack of subject matter jurisdiction, as to the U.S. Marshals, is GRANTED WITH PREJUDICE.

3.

U.S. Attorney McGregor Scott, Trial Attorney G. Patrick Jennings, and IRS Official Marilyn Collins - Official Capacity Claims

Claims against government officials acting in their official capacity are essentially suits against the United States. Consejo de Desarrollo Economico de Mexicali, A.C. v. United States of America ("Consejo"), 482 F.3d 1157, 1173 (9th Cir. 2007). In Consejo, the Ninth Circuit provided: See

[A] Bivens action can be maintained against a defendant in her or her individual capacity only, and not in his or her official capacity . . . . This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity . . . . (internal citations and quotations omitted). Moreover, "[t]he

bar of sovereign immunity cannot be avoided merely by naming officers and employees of the United States as defendants." Hutchinson, 677 F.2d at 1327. Here, Scott, Jennings, and Collins are employees of the United States: Scott is a U.S. Attorney, Jennings is a Trial Attorney with the Tax Division of the U.S. Department of Justice, and Collins is an IRS Agent. Any official capacity claims

against these individuals are claims against the sovereign and are barred. Defendants' motion to dismiss for lack of subject matter jurisdiction, as to Scott, Jennings, and Collins acting in their official capacities, is GRANTED WITH PREJUDICE. 11

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4.

U.S. Attorney McGregor Scott and Trial Attorney G. Patrick Jennings - Individual Capacity Claims

Scott and Jennings, as government prosecutors, are entitled 3 to absolute immunity from suit. 4 832, 837 (9th Cir. 1991). 5 attorney is performing acts `intimately associated with the 6 judicial phase' of the litigation, that attorney is entitled to 7 absolute immunity from damage liability." 8 immunity is thus necessary to assure that judges, advocates, and 9 witnesses can perform their respective functions without 10 harassment or intimidation." 11 (1978). 12 advocates are restrained, that is, they are restrained by their 13 professional obligations and by the judicial adjudicative process 14 itself. 15 immune from claims of malicious prosecution." 16 Harrington, 532 F.2d 1248, 1250-51 (9th Cir. 1976). 17 Here, Plaintiffs allege that Scott and Jennings made 18 fraudulent statements in the complaint and pleadings in 19 Uptergrove I. 20 Jennings knowingly misrepresented the fact that Martha was not an 21 owner of Ikon Roofing, and as such, was not liable for federal 22 income taxes arising from that business. 23 engaged in by Scott and Jennings arises from the natural course 24 of litigation, i.e., filing the initial complaint, which involves 25 alleging facts in the pleadings, and subsequent pleadings. 26 Accordingly, both Scott and Jennings, as government prosecutors 27 are entitled to absolute immunity. 28 12 This alleged misconduct Specifically, Plaintiffs contend that Scott and Flood v. Id. Accordingly, "federal prosecutors are absolutely The judicial process contains safeguards to ensure that Butz v. Economou, 438 U.S. 478, 512 Id. "Absolute Fry provides: "If the government See Fry v. Melaragno, 939 F.2d

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Defendants' motion to dismiss for failure to state a claim as to Scott and Jennings, as they are entitled to absolute immunity, is GRANTED WITH PREJUDICE. 5. IRS Agent Marilyn Collins- Individual Capacity Claim

Defendants argue that insofar as Collins is sued in her 6 individual capacity, she is not subject to suit. 7 9.) 8 unconstitutional actions of IRS officials engaged in tax 9 assessment and collection." 10 1188 (9th Cir. 2004). 11 (9th Cir. 1990), the plaintiff alleged that IRS agents engaged in 12 fraudulent and intimidating conduct. 13 has "never recognized a constitutional violation arising from the 14 collection of taxes." 15 Here, Plaintiffs allege that Collins made false statements 16 in her assessments of Plaintiffs' tax liability, as the plaintiff 17 attempted to do in Wages. 18 not overcome the settled rule that a Bivens action cannot be 19 brought for the assessment and collection of taxes, as the 20 Internal Revenue Code provides adequate alternative remedies for 21 alleged misconduct. 22 Defendants' motion to dismiss for failure to state a claim 23 is GRANTED WITH PREJUDICE. 24 // 25 // 26 // 27 // 28 13 Allegations of fraudulent conduct will Id. The court stated that it In Wages v. I.R.S., 915 F.2d 1230, 1235 Adams v. Johsnosn, 355 F.3d 1179, Bivens relief is not available for "allegedly (Doc. 10-2 at

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SO ORDERED Dated: April 17, 2009

V.

CONCLUSION

For these reasons, Defendants' motion to dismiss for lack of subject matter jurisdiction is GRANTED, as to the United States, the U.S. Marshals, and Scott, Jennings, and Collins as federal officials acting in their official capacity. Defendants' motion

to dismiss for failure to state a claim is GRANTED, as to Scott, Jennings, and Collins, acting in their individual capacity. As

to Does 1-100, Plaintiffs have failed to identify any additional defendants. Defendants' motion to dismiss as to Does 1-100 is

GRANTED WITHOUT PREJUDICE. Defendants shall lodge a form of order confirming these findings with five (5) days following electronic service of this memorandum decision.

/s/ Oliver W. Wanger Oliver W. Wanger United States District Judge

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