Perez v. IRS

Filing 12

ORDER: (1) Dismissing Action without Prejudice; (2) Denying as Moot 8 Motion for Leave to Proceed in forma pauperis; Denying as Moot 9 Motion to Appoint Counsel; Granting 11 Motion to Amend/Correct Notice of Document Discrepancies. Plaintiff is granted leave to file a second amended complaint on or before April 15, 2013. Signed by Judge Roger T. Benitez on 3/14/2013. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GUADALUPE OCHOA PEREZ,

CASE NO. 12-CV-2026 BEN (NLS)

Plaintiff,

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ORDER:
(1) DISMISSING ACTION
WITHOUT PREJUDICE

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vs.

(2) DENYING AS MOOT
MOTION TO PROCEED IN
FORMA PAUPERIS

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(3) DENYING AS MOOT
MOTION TO APPOINT
COUNSEL

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IRS,

(4) GRANTING MOTION TO
AMEND/CORRECT NOTICE OF
DOCUMENT DISCREPANCIES

Defendant.

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[Docket Nos. 8,9, 11]

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On January 17, 2013, pro se Plaintiff Guadalupe Ochoa Perez filed a First

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Amended Complaint against the Internal Revenue Service ("IRS"). (Docket No.7.)

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Plaintiff also filed a Motion to Proceed In Forma Pauperis (Docket No.8), a Motion

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to Appoint Counsel (Docket No.9), and a Motion to Amend/Correct Notice of

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Document Discrepancies (Docket No. 11). The Court decides the matters on the papers

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submitted. For the reasons outlined below, the Court DISMISSES the action without

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prejudice, DENIES as moot the Motion to Proceed In Forma Pauperis and Motion to
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Appoint Counsel, and GRANTS the Motion to Amend/Correct Document

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Discrepancies.
BACKGROUND

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Plaintiff alleges that Plaintiff s identity was stolen in 1991 and 1993. (F AC at

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2.) Plaintiff alleges that in "1993 I did not work and IRS contacted me about

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payment.... Nellency [sic] ofIRS cost me a lot ofstress and mental disturbance." (Id.

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at 2.) Plaintiffwishes to "correct administrative error by IRS [because] my record[s]

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are incorrect" (id. at 3), and that "I need trial date in Tax court to present my case and

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to make payment agreement on installment payment and to request waiver ofpenalties"

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(id. at 1). Plaintiff also alleges that Plaintiff unsuccessfully sought assistance from a

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"tax advocate," H&R Block, and a law student, among others. (Id. at 3.)
DISCUSSION

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I.

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A complaint filed by any person proceeding, or seeking to proceed, in forma

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pauperis under 28 U.S.C. § 1915(a) is subject to mandatory sua sponte review and

SUA SPONTE SCREENING AND DISMISSAL

16 dismissal if the complaint is frivolous or malicious, fails to state a claim upon which
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relief may be granted, or seeks monetary relief from a defendant immune from suit. 28

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U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000).

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The legal sufficiency of a complaint is tested under Federal Rule of Civil

20 Procedure 12(b)(6). Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Rule
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12(b)(6), dismissal is appropriate if the complaint fails to state a facially plausible

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claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). That is, the

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complaint must state enough facts to raise a reasonable expectation that discovery will

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reveal evidence of the claim. Id. at 556. Dismissal is also appropriate when the

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complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,

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749 F.2d 530,534 (9th Cir. 1984). The court must assume the truth of all factual

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allegations and construe them in the light most favorable to the plaintiff. Thompson

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v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d
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336,337-38 (9th Cir. 1996). Pro se litigants are not "excused from knowing the most

2 basic pleading requirements." Am. Ass 'n a/Naturopathic Physicians v. Hayhurst, 227
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F.3d 1104, 1107 (9th Cir. 2000).

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Here, Plaintiff does not allege sufficient facts to establish that the IRS made an

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"administrative error." In addition, even assuming that the IRS made an administrative

6 error, Plaintiff does not cite a legal basis for bringing a cause ofaction against the IRS.
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Moreover, Plaintiff is informed that this Court, the United States District Court for the

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Southern District of California, is distinct from the United States Tax Court. The

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Complaint is DISMISSED WITHOUT PREJUDICE because it lacks a cognizable

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legal theory.

II.

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MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION TO APPOINT
COUNSEL

Because Plaintiff's First Amended Complaint is dismissed, Plaintiff's Motion to
Proceed In Forma Pauperis and Motion to Appoint Counsel are DENIED as moot.

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III.

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A Notice ofDocument Discrepancies was filed on January 17, 2013, accepting

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Plaintiff's First Amended Complaint for filing. (Docket No.6.) This Notice of

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Document Discrepancies contained a typographical error, in that it listed the case title

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as "Perez v. INS."

MOTION TOAMEND/CORRECT NOTICE OF DOCUMENT DISCREPANCIES

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On January 25, 2013, Plaintiff filed a Motion to Amend/Correct Document

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Discrepancies, informing the Court that the correct title ofthis case is "Perez v. IRS."

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The Court acknowledges that a typographical error was made on the January 17, 2013

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Notice of Document Discrepancies.

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Document Discrepancies is GRANTED.

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Plaintiff's motion to amend the Notice of

CONCLUSION

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For the reasons stated above, the First Amended Complaint is DISMISSED

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WITHOUT PREJUDICE. Plaintiff is granted leave to file a second amended

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complaint that corrects the deficiencies outlined above. Any such second amended
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complaint must be filed no later than April IS, 2013. If Plaintiff chooses to file a

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second amended complaint, Plaintiff is encouraged to write as legibly as possible.

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The Motion to Proceed In Forma Pauperis and Motion to Appoint Counsel are

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DENIED as moot. If Plaintiff wishes to renew the Motion to Proceed In Forma

5 Pauperis or the Motion to Appoint Counsel, Plaintiff must file a new motion to proceed

6 in forma pauperis and motion to appoint counsel along with a second amended
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complaint.
The Motion to Amend/Correct Notice of Document Discrepancies

IS

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ted States District Judg

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