Bush v. United States Government et al

Filing 35

OPINION AND ORDER granting Roger Chalmers and the Georgia Department of Revenue's Motion to Dismiss 12 , denying as moot Roger Chalmers and the Georgia Department of Revenue's Motion to Stay 13 , granting Internal Revenue Service, United States Department of Justice, United States Department of State, and the Executive Branch's Motion to Dismiss 21 , denying as moot Internal Revenue Service, United States Department of Justice, United States Department of State, and the Executi ve Branch's Motion to Stay 28 . It is further ordered that Plaintiff's Motion for Relief from Court Order 14 , Motion for Sanctions 18 , Motion for Defendants to Comply 19 , Motion for Court Conference 25 , and Motion for Sanctions 26 are denied. Signed by Judge William S. Duffey, Jr. on 6/12/18. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THOMAS K. BUSH,
Plaintiff,
v.

1:16-cv-4067-WSD

THE EXECUTIVE BRANCH
UNITED STATES GOVERNMENT,
PRESIDENT BARACK OBAMA,
ATTORNEY GENERAL
LORETTA LYNCH, F.B.I.
DIRECTOR JAMES COMEY, U.S.
DEPT OF JUSTICE, HILLARY
RODHAM CLINTON, Former
Secretary of State, BILL CLINTON,
Former President, THE CLINTON
FOUNDATION, PATRICK
FRANCIS KENNEDY, Under
Secretary of State for Management,
U.S. DEPT OF STATE, FEDERAL
BUREAU OF INVESTIGATION,
SPECIAL AGENT R. STEPHEN
FARR, Atlanta, JAMES TATMAN,
Civil Rights Director, SAM OLENS,
Georgia Attorney General,
FRANCES MULDERIG, ROGER
CHALMERS, Georgia Dept. of Law,
STEVE RAFTER, Georgia Convict,
INTERNAL REVENUE SERVICE,
GEORGIA DEPT OF REVENUE,
OTHER UNNAMED
DEFENDANTS,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendants Roger Chalmers (“Chalmers”)
and the Georgia Department of Revenue’s (“GDOR”) Motion to Dismiss [12] and
Motion to Stay [13]; Plaintiff Thomas K. Bush’s (“Plaintiff”) Motion for Relief
from Court Order [14], Motion for Sanctions [18], Motion for Defendants to
Comply [19], Motion for Court Conference [25], and Motion for Sanctions [26];
and the Federal Bureau of Investigations (“FBI”), Internal Revenue Service
(“IRS”), United States Department of Justice (“DOJ”), United States Department
of State, and the Executive Branch’s Motion to Dismiss [21] and Motion to Stay
[28].
I.

BACKGROUND
On October 31, 2016, Plaintiff Thomas K. Bush (“Plaintiff”) filed his pro se

Complaint [1] against at least twenty defendants, most of whom are government
entities or high-profile government officials. The Complaint alleges that
Defendants President Barack Obama, Hillary Clinton and F.B.I. Director
James Comey “conspire[ed] not to arrest and prosecute former secretary of state
Hillary Rodham Clinton . . . in regards to Mrs. Clinton using a private email server
while serving as secretary of state.” (Compl. at 1). The Complaint further alleges
that “the executive branch of the United States Government has violated the
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separation of powers outlined in the U.S. Constitution . . . by seizing judicial power
from the judicial branch of government,” including because “Defendants Obama,
[Loretta] Lynch, Comey, U.S. Dept of Justice are not members of the judiciary,
and cannot decide Hillary Clinton’s innocence when she clearly violated multiple
sections of Title 18 U.S.C.” (Id. at 8). Plaintiff also alleges that “[Edward]
Snowden was simply a whistleblower, not a criminal,” and that Defendants
President Barack Obama and U.S. Dept of Justice violated federal law
“by bringing criminal charges against Mr. Snowden.” (Compl. at 17).
Plaintiff did not file proof of service on any of the Defendants within the
ninety-day period required by Rule 4(m) of the Federal Rules of Civil Procedure.
On October 3, 2017, the Court ordered that Plaintiff file, on or before
October 16, 2017, proof that service was waived or effectuated on each Defendant.
([4]). The Court admonished Plaintiff that “[f]ailure to do so will result in
dismissal of this action.” (Id.).
On October 13, 2017, Plaintiff filed a Return of Service Unexecuted as to
Defendants Frances Mulderig and Jim Owens. ([6]).
On October 16, 2017, Plaintiff filed a Return of Service for Defendants
Rodger Chalmers and the Georgia Department of Revenue. ([7]).
On October 16, 2017, Plaintiff filed a Return of Service Unexecuted as to
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Defendant Steven Rafter. ([10]).
On October 16, 2017, Plaintiff filed purported proofs of service showing that
he sent copies of the summons by certified mail to the Civil Process Clerk of the
United States Attorney’s Office for the Northern District of Georgia. ([11]). The
Defendants whom Plaintiff purported to serve by certified mail include the United
States Department of State, the Executive Branch, the FBI, former Attorney
General Loretta Lynch, former FBI Director James Comey, the DOJ, former
Secretary of State Hillary Clinton, President Bill Clinton, James Tatman, President
Barack Obama, the IRS, the Clinton Foundation, Patrick Francis Kennedy, and FBI
Special Agent R. Stephen Farr. (Id.).
II.

DISCUSSION
A.

Service of Process

Rule 4 of the Federal Rules of Civil Procedure provides:
(i) Serving the United States and Its Agencies, Corporations,
Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the
complaint to the United States attorney for the district
where the action is brought--or to an assistant United
States attorney or clerical employee whom the United
States attorney designates in a writing filed with the court
clerk--or
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(ii) send a copy of each by registered or certified
mail to the civil-process clerk at the United States
attorney's office; [and]
(B) send a copy of each by registered or certified mail to
the Attorney General of the United States at Washington,
D.C.;
....
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or a
United States officer or employee sued only in an official capacity, a
party must serve the United States and also send a copy of the
summons and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.
Fed. R. Civ. P. 4 (emphasis added).
Plaintiff’s document purporting to show proof of service on several
Defendants through the U.S. Attorney’s Office does not constitute proper service
under the Federal Rules of Civil Procedure. Service under Rule 4(i)(1)(A)(ii), the
only aspect of service that Plaintiff completed, only satisfies one prong of service
on the United States. It is not proper service under Fed. R. Civ. P. 4(i)(3) and Fed.
R. Civ. P. 4(e). It furthermore does not constitute service on individuals or
nonfederal entities. The only Defendants served properly in this action are Roger
Chalmers and the GDOR. Accordingly, the action is dismissed as to all other
defendants pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure.

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B.

The GDOR and Roger Chalmers’s Motion to Dismiss
1.

Standard on a Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the
Court is not required to accept conclusory allegations and legal conclusions as true.
See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)).
“To 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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly,
550 U.S. at 570).
2.

Analysis

The Complaint contains no numbered paragraphs and does not separately
identify any counts upon which Plaintiff’s claims are based. With respect to
Defendants GDOR and Chalmers, Plaintiff cites four federal criminal statutes as
the basis of his claim: (1) 18 U.S.C. § 1345 (permitting the Government to
commence a civil action in federal court to enjoin the commission of specific
instances of fraud against the United States or any of its agencies); (2) 18 U.S.C.
§ 371 (prohibiting two or more persons from conspiring to commit any offense or
to defraud the United States, or any agency thereof); (3) 18 U.S.C. § 372
(prohibiting entering into a conspiracy to impede or injure a federal officer); and
(4) 18 U.S.C. § 1071 (prohibiting harboring or concealing any person from arrest).
The Complaint, however, makes no factual allegations consistent with those
statutes.
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Plaintiff’s “addendum” does not include any further factual allegations about
Defendants GDOR or Chalmers. ([3]). The addendum instead purports to identify
additional claims based exclusively on criminal statutes including 18 U.S.C. § 2
(designating who may be punished as a principal in the commission of an offense
against the United States); 18 U.S.C. § 3 (designating who may be punished as an
accessory after the fact in the commission of an offense against the United States);
and 18 U.S.C. § 4 (defining the offence of misprision of felony). (Id.). In his
addendum, Plaintiff seeks to add former United States Attorney Sally Yates, as the
“tie that binds” the other cases to the case he now seeks to bring, although he fails
to identify any connection between proposed defendant Yates and the GDOR and
Chalmers or the actions attributed in the original complaint to GDOR and
Chalmers.
Finally, in his prayer for relief, Plaintiff alleges that “the Defendants”
violated his “4th, 7th and 14th Amendment rights” ([1] at 18), but does not
enumerate which defendant or make any fact specific allegation regarding alleged
constitutional violations by Defendants GDOR or Chalmers.
The Complaint fails to state a plausible claim for relief against the GDOR
and Chalmers. Plaintiff’s lengthy complaint and addendum consist almost entirely
of confusing recitations of unconnected facts and legal conclusions without any
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clarity as to the allegations specifically being made against these or other
defendants.
The only factual allegations that appear to pertain to the GDOR are barred
by Georgia state law and the Tax Injunction Act. Plaintiff alleges that the GDOR
“allow[s] employers to illegally classify employees as independent contractors[]
and not report earned income they received from their employees.” (Compl. at
14). Plaintiff further alleges that the GDOR “ha[s] not provided due process rights
to citizens illegally classified as independent contractor.” (Id.). To the extent that
Plaintiff’s claim is based upon being assessed for tax liability as a result of being
classified as an independent contractor, that claim is barred by Georgia law, which
provides that “[t]he income tax liability of an employee shall be in no way affected
by the failure of the employer to withhold the tax required under this article.”
O.C.G.A. § 48-7-109(b). Even if Plaintiff was misclassified as an independent
contractor by his employers, and income tax should have been withheld from his
checks, he is not relieved of liability for the unpaid income taxes.
The Tax Injunction Act also bars Plaintiff’s claims. It provides: “[t]he
district courts shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient remedy
may be had in the courts of such State.” 28 U.S.C. § 1341. Georgia law provides a
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taxpayer four statutory remedies to contest tax liability asserted by the State: (1) by
filing a direct appeal to superior court from a final assessment pursuant to the
provisions of O.C.G.A. § 48-2-59; (2) by filing a claim for refund after payment of
the disputed assessment pursuant to the provisions of O.C.G.A. § 48-2-35; (3) by
filing an affidavit of illegality after the issuance of a tax execution pursuant to the
provisions of O.C.G.A. § 48-3-1; or (4) by requesting a review pursuant to the
provisions of O.C.G.A. § 50-13-12 of the Administrative Procedure Act (“APA”).
Plaintiff does not allege that these state remedies are insufficient or that they were
even attempted. Plaintiff has failed to state a plausible claim for relief against the
GDOR.
The only factual allegations that appear to pertain to Chalmers arise from
Plaintiff’s attempt to get information about Defendant Steven Rafter from the
Georgia Department of Corrections, which was represented by Chalmers is his
capacity as an attorney for the Georgia Department of Law. (Compl. at 12-14).
Plaintiff alleges that in that civil action, Defendant Chalmers “would not respond
about the GA Dept of Corrections custody of Defendant Steve Rafter or [his]
criminal history and did in fact cite that Plaintiff did have previous cases in US
District Court, NDGA in regard to fugitive convict Steve Rafter.” (Id. at 13).
Although Plaintiff seeks to have the Court enjoin Defendant Chalmers from
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committing fraud, the Complaint is silent as to how the cited actions may have
constituted fraud or as to any specific allegations of fraudulent activity by
Chalmers. The Complaint therefore fails to state a cause of action against
Chalmers.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Roger Chalmers and the Georgia

Department of Revenue’s Motion to Dismiss [12] is GRANTED.
IT IS FURTHER ORDERED that Roger Chalmers and the Georgia
Department of Revenue’s Motion to Stay [13] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Internal Revenue Service, United States
Department of Justice, United States Department of State, and the Executive
Branch’s Motion to Dismiss [21] is GRANTED.
IT IS FURTHER ORDERED that that Internal Revenue Service, United
States Department of Justice, United States Department of State, and the Executive
Branch’s Motion to Stay [28] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff Thomas K. Bush’s Motion for
Relief from Court Order [14]; Motion for Sanctions [18], Motion for Defendants to

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Comply [19], Motion for Court Conference [25], and Motion for Sanctions [26] are
DENIED.

SO ORDERED this 12th day of June, 2018.

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