Noll v. Peterson et al

Filing 27

ORDER FINDING CLIFFORD L. NOLL A VEXATIOUS LITIGANT AND IMPOSING PRE-FILING RESTRICTIONS granting 10 Motion to Deem Clifford L. Noll a Vexatious Litigant and for Entry of Pre-Filing Order. Plaintiff, Clifford L. Noll, is PROHIBITED from filing any civil pleadings in this Court challenging the assessment or collection of federal income taxes (either filed against the United States or against federal officers) unless and until those pleadings have been reviewed by a District Judge or Magistrate Judge for possible legal merit pursuant to Federal Rule of Civil Procedure 11 prior to being electronically filed and served, and that the United States, or individual defendants sued in their official or individual capacities, must only respond to s uch pleadings when ordered to by this Court.Signed by Senior Judge Wm. Fremming Nielsen. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs) (Additional attachment(s) added on 9/17/2015: # 1 Appendix 1, 92-cv-282, # 2 Appendix 2, 93-cv-100, # 3 Appendix 3, 94-cv-521, # 4 Appendix 4, 96-cv-280 part 1 of 3, # 5 Appendix 4, 96-cv-280-1 part 2 of 3, # 6 Appendix 4, 96-cv-280 part 3 of 3, # 7 Appendix 5, 97-c v-145 part 1 of 3, # 8 Appendix 5, 97-cv-145 part 2 of 3, # 9 Appendix 5, 97-cv-145 part 3 of 3, # 10 Appendix 6, 99-cv-590, # 11 Appendix 7, 01-cv-2, # 12 Appendix 8, 02-cv-87, # 13 Appendix 9, 02-cv-484, # 14 Appendix 10, 03-cv-34, # 15 Appendix 11, 12-cv-138) (cjs). Modified on 9/17/2015 to reflect electronic notice and mailing regenerated for attached Appendices (cjs).

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By Sunny Trumbull
on Jul 21, 2015 8:49 am

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By Sunny Trumbull
on Jul 21, 2015 8:49 am

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CLIFFORD L. NOLL,
Case No. 2:12--cv-00138-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
JOHN PETERSON, et al.,
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion to Dismiss (Dkt 5), and Noll’s Motion
to Strike (Dkt 9), which is essentially a second response to the motion to dismiss. For the
reasons explained below, the Court will grant the motion to dismiss and deny the motion
to strike.
BACKGROUND
1.

Noll’s Past Claims
In the past, Noll and his wife have filed several complaints against the IRS and it’s

employees, with similar allegations to those made in this case. The previous complaints by

MEMORANDUM DECISION AND ORDER - 1

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the Nolls challenged the authority of the IRS and it’s employees to assess and collect taxes. Noll
v. I.R.S., 1996 WL 84671, at *1 (D. Idaho 1996); Noll v. United States, 1998 WL 823413, at *1
(9th Cir. 1998); Noll v. U.S. Gov’t, 1999 WL 1816896, at *2 (D. Idaho 1999). On one occasion,
the Nolls tried to invoked the Freedom of Information Act to obtain documents from the IRS.
Noll v. I.R.S., U.S. Dept. of Treasury, 1994 WL 745184, at *1 (D. Idaho 1994). The Nolls have
also brought claims against individual IRS employees for fraud, embezzlement, and
constitutional violations, based on the employees’ attempts to collect unpaid taxes from them.
Noll v. Peterson, 2001 WL 721733 (D. Idaho 2001) report and recommendation adopted at 2001
WL 846493 (D. Idaho 2001).
Each of the previous complaints were dismissed. Several of them were dismissed for lack
of subject-matter jurisdiction under the doctrine of sovereign immunity. Noll v. I.R.S, 1996 WL
84671, at *3 (D. Idaho 1996); Noll v. United States, 1998 WL 823413, at *1 (9th Cir. 1998); Noll
v. U.S. Gov’t, 1999 WL 1816896, at *2 (D. Idaho 1999). The Nolls’ constitutional claims
against IRS employees were dismissed because the courts have not recognized constitutional
claims arising from the collection of taxes. Noll v. Peterson, 2001 WL 721733, at *3-4 (D. Idaho
2001) report and recommendation adopted 2001 WL 846493 (D. Idaho 2001). Such
constitutional claims are unavailable because Congress has already provided sufficient remedies
to protect taxpayers against improperly collected taxes. Id. Lastly, the Nolls’ complaint invoking
the Freedom of Information Act was dismissed because they failed to exhaust their
administrative remedies before bringing suit. Noll v. I.R.S., U.S. Dept. of Treasury, 1994 WL
745184, at *2 (D. Idaho 1994).

2.

Noll’s Current Claim

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Noll’s current Complaint and motion to strike are somewhat difficult to
understand. Moreover, the current claims appear quite similar the allegations in the Nolls’
previous complaints. Based upon a thorough review of the Complaint, the Court will
dismiss the Complaint for the reasons explained below.
In his Complaint, the following defendants are listed: John Peterson; Betty Young;
Keith Farrar; Ms. Case, employee #0469545905; Ms. Simmons, employee
#04695248333; Mr. Parizek, 29-61699; and one, or more, unknown IRS Computer Data
Entry Persons (“Defendants”). (Dkt. 1). The Complaint does not specifically list the IRS
as a defendant. (Dkt. 1). However, the Ninth Circuit Court of Appeals has held that when
a suit is brought against IRS employees in their official capacity, it is virtually a suit
against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985).
Therefore, the Complaint will be construed as asserting claims against the IRS and
against the individual defendants in their official capacity and individual capacity.
Noll’s first claim appears to challenge the authority of the IRS and the individual
defendants to assess and collect taxes from him and his wife. Noll asserts that on
November 10, 1988, Defendant Unknown IRS Computer Data Entry Persons(s)
wrongfully entered a debt of $221,233.56 against him and his wife. (Dkt. 1 at 2). Noll
claims it was wrongful because he and his wife were not subject to a federal tax. (Dkt. 1
at 2). Specifically, Noll believes that he is a “lawful non-taxpayer in relationship to
Federal Tax Regulation.” (Dkt. 1 at 1). Thus, as stated above, it appears that Noll is
challenging the IRS’s authority and the individual defendant’s authority to assess and
MEMORANDUM DECISION AND ORDER - 3

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collect taxes from him and his wife.
Noll’s second claim appears to assert that the individual defendants violated his
constitutional rights. Noll asserts that in 1994 Defendants wrongfully generated a lien
against his property and assets. (Dkt. 1 at 3). He also asserts Defendants wrongfully
seized money from him and his wife’s bank account after placing a levy on it. (Dkt. 1 at
3). Moreover, Noll claims that the Defendants have, and still are, making wrongful
demands for payment in regard to an outstanding tax debt. (Dkt. 1 at 3). The Court
understands Noll to be asserting that the Defendants use of lien, levy, or the seizing of his
property and assets, violated his Fourth and Fifth Amendments to the Constitution. (Dkt.
1 at 3).
LEGAL STANDARD
The government asks the Court to dismiss Noll’s Complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedures, and
for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure.1 The Supreme Court has stated that Federal Courts
are of limited jurisdiction and possess only the power given by the United States
Constitution and statute. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

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Along with its arguments that the Court lacks subject matter jurisdiction and that Noll has failed
to state a claim upon which relief can be granted, The government asserts that Nolls claims should be
dismissed based upon res judicata and insufficient service of process. (Dkt. 5 at 13-14). Although both
arguments appear to merit dismissal, the Court will not address them because it is clear the Complaint
should be dismissed based upon a finding that the Court lacks subject matter jurisdiction and because
Noll has failed to state a claim upon which relief can be granted.
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Such authority can not be expanded by judicial decree. Id. The party asserting subject
matter jurisdiction bears the burden of establishing such jurisdiction. Id. In determining
whether to dismiss a claim under Rule 12(b)(1), a court is not limited to the pleadings,
“but may review any evidence, such as affidavit and testimony, to resolve factual disputes
concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560
(9th Cir. 1988).
As for the failure to state a claim argument, Federal Rule of Civil Procedure
8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is
entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need
detailed factual allegations,” it must set forth "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555. 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.” Id. at 570. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556.
The plausibility standard is not akin to a “probability requirement,” but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint
pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557.
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In a more recent case, the Supreme Court identified two “working principles” that
underlie Twombly. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions. Id. “Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-679.
Second, only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. at 679. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may
be appropriate when the plaintiff has included sufficient allegations disclosing some
absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783,
n. 1 (9th Cir. 1997) (stating that “[i]f the pleadings establish facts compelling a decision
one way, that is as good as if depositions and other . . . evidence on summary judgment
establishes the identical facts”).
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728,
737 (9th Cir. 2009)(issued 2 months after Iqbal).2 The Ninth Circuit has held that “in
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The Court has some concern about the continued vitality of the liberal amendment policy
adopted in Harris v. Amgen, based as it is on language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
suggesting that "a complaint should not be dismissed for failure to state a claim unless it appears beyond
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dismissals for failure to state a claim, a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v.
Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The
issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to
support the claims.” Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d
1202, 1205 (9th Cir. 2007)(citations omitted).
Under Rule 12(b)(6), the Court may consider matters that are subject to judicial
notice. Mullis v. United States Bank, 828 F.2d 1385, 1388 (9th Cir. 1987). The Court
may take judicial notice “of the records of state agencies and other undisputed matters of
public record” without transforming the motions to dismiss into motions for summary
judgment. Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866
(9th Cir. 2004). The Court may also examine documents referred to in the complaint,
although not attached thereto, without transforming the motion to dismiss into a motion
for summary judgment. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). In a
pro se complaint, allegations are generally held to less stringent standards than formal
pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 (1972).
ANALYSIS
1.

Sovereign Immunity

doubt that the plaintiff can prove no set of facts in support of his claim. . .." Given Twombly and Iqbal's
rejection of the liberal pleading standards adopted by Conley, it is uncertain whether the language in
Harris v. Amgen has much of a life expectancy.
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Noll’s first claim challenges both the IRS’s authority and the individual defendants
authority to assess and collect taxes from him and his wife. (Dkt 1 at 1-2). The Court
finds that it lacks subject-matter jurisdiction under the doctrine of sovereign immunity.
The United States, as a sovereign, may not be sued in federal court without its
consent. United States v. Testan, 424 U.S. 392, 399 (1976); Gilbert,756 F.2d at 14581459. In Gilbert, the Ninth Circuit Court of Appeals explained that the United States is a
sovereign, and therefore it is immune from suit unless it provides an expressed waiver to
such immunity and consents to be sued. Gilbert, 756 F.2d at 1458-1459. If the United
States does not unequivocally express a waiver, thereby consenting to the suit, the suit
must be dismissed. Id. Additionally, the “party bringing a cause of action against the
federal government bears the burden of showing an unequivocal waiver of immunity.”
Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987).
Furthermore, as already mentioned, the Ninth Circuit Court of Appeals has held
that a suit filed against IRS employees in their official capacity is, for all intents and
purposes, a suit against the United States. Gilbert, 756 F.2d at 1458-1459. In Gilbert, the
plaintiff argued that by naming three IRS employees as defendants, in their official
capacity, the suit was not against the United States and therefore not barred by the
doctrine of sovereign immunity. Id. The court disagreed, finding that the doctrine of
sovereign immunity cannot be avoided simply by naming United States employees as
defendants. Id. Therefore, the court dismissed all claims against the IRS and individual
defendants who where acting in their official capacity, under the doctrine of sovereign
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immunity. Id.
In this case, Noll attempts to avoid the doctrine of sovereign immunity by naming
IRS employees as defendants in a similar way as the plaintiff did in Gilbert. Noll’s
attempt fails. As stated above, a suit filed against IRS employees in their official capacity
is a suit against the United States. Id. Therefore, Noll’s claim challenging the authority of
the IRS and individual defendants to assess and collect taxes is a claim against the United
States, and is subject to the doctrine of sovereign immunity. Id. Accordingly, Noll has the
burden of showing that the United States waived it sovereign immunity and consented to
the suit. Baker, 817 F.2d at 562.
Noll has failed to show that the United States waived its sovereign immunity. He
has not produced any evidence of an expressed, statutory waiver by the United States. In
fact, he has made no real attempt to do so. (Dkt. 1; Dkt 9). Thus, Noll is unable to
produce an expressed waiver and consent by the United States, and his suit is barred by
the doctrine of sovereign immunity. Testan, 424 U.S. at 399 (1976); Gilbert,756 F.2d at
1458-1459. Accordingly, this Court holds that it does not have subject-matter jurisdiction,
and Noll’s claims against the IRS and individual defendants in their official capacity must
be dismissed. Id.
2.

Fourth and Fifth Amendment Rights
Noll’s second claim appears to be asserted against the individual defendants in

their individual capacity. Specifically, Noll seems to allege that these individual
defendants violated his Fourth and Fifth Amendments by using a lien, a levy, and by
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seizing his property and assets. (Dkt 1).
The United States Supreme Court has recognized that the doctrine of sovereign
immunity does not bar all actions against federal officials in their individual capacities for
alleged violations of an individual’s constitutional rights. Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971). However, this right to sue a federal official in
their individual capacity for violation of constitutional rights under Bivens is qualified,
and is not absolute. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004)
The Supreme Court has provided general instruction describing when actions
under Bivens are unavailable. Schweiker v. Chilicky, 487 U.S. 412, 423, (1988):“When
the design of a Government program suggests that Congress has provided what it
considers adequate remedial mechanisms for constitutional violations that may occur in
the course of its administration, we have not created additional Bivens remedies.” Id.
Based on this instruction, the Ninth Circuit has held that claims against IRS auditors and
officials under Bivens are unavailable because the Internal Revenue Code gives the
plaintiff taxpayer the appropriate protections against wrongful tax assessments and
collections. Adams v. Johnson, 355 F.3d 1179, 1186 (9th Cir. 2004); Wages v. Internal
Revenue Service, 915 F.2d 1230, 1235 (9th Cir. 1990).
In Wages, the plaintiff alleged several constitutional violations against individual
employees of the IRS for depriving her of her liberty and property through extortion,
theft, fraud, and coercion. Wages, 915 F.2d at 1232. In that case, the court dismissed the
plaintiff’s constitutional claims under Bivens because the remedies provided by Congress
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were sufficient to protect an injured taxpayer. Id. at 1235. Thus, the plaintiff failed to
state grounds upon which relief could be granted. Id.
In this case, Noll is asserting similar claims. Noll argues that his Fourth and Fifth
Amendment rights were violated by the individual defendants’ conduct in assessing and
collecting taxes. (Dkt 1). Noll claims that the individual defendants placed a lien and a
levy on certain property and assets. (Dkt. 1). However, this conduct – using a lien or levy
to collect taxes – has been provided for under Title 26 of the Internal Revenue Code,
Chapter 64, entitled Collections. 26 U.S.C.A. § 6320; 26 U.S.C.A. § 6330. These sections
of the Internal Revenue Code outline the procedures required by the government in using
a lien or levy. Id. Noll has not asserted any conduct by the individual defendants which
would be outside the scope of their responsibilities in assessing and collecting taxes. (Dkt
1). Clear precedent indicates that Noll’s constitutional claim against IRS auditors and
officials are unavailable because the Internal Revenue Code provides Noll the appropriate
protections against wrongful tax assessments and collections. Adams, 355 F.3d at 1186;
Wages, 915 F.2d at 1235. Therefore, the Court will dismiss Noll’s constitutional claims
based upon the Fourth and Fifth Amendments of the Constitution.
As noted above, dismissal without leave to amend is improper unless it is beyond
doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc.,
573 F.3d 728, 737 (9th Cir. 2009)(issued 2 months after Iqbal). The Ninth Circuit has
held that “in dismissals for failure to state a claim, a district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines that the
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pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and
Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir.
1990).
Here, the Court finds that Noll’s pleading could not possibly be cured. Noll’s
claims are almost identical to the several claims he has filed in past years, all of which
have been dismissed. Moreover, the orders dismissing Noll’s claims which were appealed
to the Ninth Circuit were affirmed. Accordingly, the Court finds that it is beyond doubt
that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573
F.3d 728, 737 (9th Cir. 2009)
ORDER
IT IS ORDERED:
1.

Defendant’s Motion to Dismiss (Dkt 5) is GRANTED.

2.

Noll’s Motion to Strike (Dkt 9) is DENIED.

3.

The Court will enter a separate judgment in accordance with Fed. R. Civ. P.
58.
DATED: October 5, 2012

B. LYNN WINMILL
Chief U.S. District Court Judge

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Case: 12-35903

03/28/2013

ID: 8567637

DktEntry: 8

Page: 1 of 1

FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLIFFORD L. NOLL,

MAR 28 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

No. 12-35903

Plaintiff - Appellant,

D.C. No. 2:12-cv-00138-BLW
U.S. District Court for Idaho,
Boise

v.
JOHN PETERSON; et al.,

ORDER
Defendants - Appellees.

Before: PREGERSON, GRABER, and BEA, Circuit Judges.
Appellant seeks review of the district court’s dismissal of his complaint
asserting claims against various employees at the Internal Revenue Service.
Appellees’ motion to dismiss is granted because appellant has failed to pay the
sanctions imposed by this court in appeal No. 98-35396. See Hymes v. United
States, 993 F.2d 701, 702 (9th Cir. 1993) (order) (dismissing appellant’s appeal for
failure to pay previously imposed sanctions).
No motions for reconsideration, clarification, or modification of this order
will be entertained.
DISMISSED.

KN/MOATT

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Case: 12-35903

10/15/2013

ID: 8821918

DktEntry: 12

Page: 1 of 1

Supreme Court of the United States
Office of the Clerk
Washington, DC 20543-0001
October 15, 2013

Scott S. Harris
Clerk of the Court
[phone]

Clerk
United States Court of Appeals for the Ninth
Circuit
95 Seventh Street
San Francisco, CA 94103-1526
Re: Clifford L. Noll
v. John Peterson, et al.
No. 13-5793
(Your No. 12-35903)
Dear Clerk:
The Court today entered the following order in the above-entitled case:
The petition for a writ of certiorari is denied.

Sincerely,

Scott S. Harris, Clerk

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