Farmer (ID 102981) v. Internal Revenue Service

Filing 7

ORDER ENTERED: The complaint is dismissed without prejudice. Plaintiff's motion 5 for appointment of counsel is moot. Signed by Senior District Judge Sam A. Crow on 7/11/2013. (Mailed to pro se party Jonathan Lee Farmer by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JONATHAN LEE FARMER,
Plaintiff,
v.

CASE NO. 13-1188-SAC

INTERNAL REVENUE SERVICE,
Defendant.

O R D E R
This matter is before the court on a complaint filed pro se by
a prisoner incarcerated in a Kansas correctional facility.

The court

granted plaintiff provisional leave to proceed in forma pauperis under
28 U.S.C. § 1915, subject to plaintiff’s timely payment of the initial
partial filing fee assessed by the court under 28 U.S.C. § 1915(b)(1).
Plaintiff subsequently paid that assessed fee, and thus proceeds in
forma pauperis in this civil action.1
Because plaintiff is a prisoner, the court is required to screen
the complaint and to dismiss it or any portion thereof that is
frivolous, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant immune from such relief.
U.S.C. ' 1915A(a) and (b).

28

Although a complaint filed pro se by a party

proceeding in forma pauperis must be given a liberal construction,

1
Plaintiff is reminded that he is obligated to pay the full $350.00 district
court filing fee. See 28 U.S.C. ' 1915(b)(1)(prisoner bringing a civil action or
appeal in forma pauperis is required to pay the full filing fee). Payment of the
remainder of the district court filing fee is to proceed over time through automatic
payments from plaintiff’s inmate account, as authorized by 28 U.S.C. ' 1915(b)(2).

Erickson v. Pardus, 551 U.S. 89 (2007), even under this standard a
pro se litigant=s Aconclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be
based.@

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Plaintiff bears the burden of alleging Aenough facts to state a claim
to relief that is plausible on its face.@

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).
Reviewing plaintiff’s allegations under these standards, the
court finds the complaint is subject to being summarily dismissed.
The sole defendant named in this action is the Internal Revenue
Service (IRS).

Plaintiff seeks a court order to prevent the IRS from

collecting unpaid back taxes, fines, and penalties because plaintiff
is indigent and unable to pay said amounts while incarcerated.
Plaintiff states only that he wants relief from his 2005 and 2011
taxes, fines, and penalties (identified by plaintiff as $20,531.00
and $2,848.82, respectively), and that he “contacted the IRS and
didn’t get anywhere.”

No other facts are provided in the complaint,

or in the attached MOTION FOR JUDGMENT OF INDIGENCY in which plaintiff
asks for a release of his debt to the IRS and a waiver of all back
taxes, fines, and penalties.
Plaintiff essentially seeks injunctive relief that is barred by
the Anti-Injunction Act.

See 26 U.S.C. § 7421(a)(but for specific

statutory exceptions, “no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any court
by any person”).

The principle purpose of this Act is to preserve

the United States’ ability to assess and collect taxes expeditiously
with “a minimum of pre-enforcement judicial interference.”

Bob Jones

University v. Simon, 416 U.S. 725, 736 (1974).
Plaintiff’s sparse complaint fails to provide a factual basis
for application of any statutory exception to the Act, and nothing
in the complaint suggests that plaintiff could satisfy the narrow
judicial exception set forth in

Enochs v. Williams Packing &

Navigation Co., 370 U.S. 1 (1962), for establishing this court’s
equity jurisdiction to a suit otherwise barred by the Act.
That narrow exception requires plaintiff to show both that(1)
the government cannot ultimately prevail, and (2) the existence of
irreparable harm for which there is no legal remedy.
Trucking

Ass’n.,

Cir.1996)(citing

Inc.

v.

Bentsen,

Enochs

v.

William

82

F.3d

Packing).

See Wyoming

930,
Here,

933

(10th

plaintiff

articulates no identifiable claim on which the government could not
prevail under any circumstances, and offers no legally sound basis
for demonstrating that he lacks an adequate remedy at law.
Accordingly, pursuant to the Act’s clear statutory mandate, this
court thus lacks jurisdiction to consider plaintiff’s request for
injunctive relief barring the collection of his federal taxes, fines,
and penalties.

Because it plainly appears that allowing plaintiff

an opportunity to cure this identified deficiency would be futile,
the court finds the complaint should be dismissed.

See Fed.R.Civ.P.

12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”) and
28 U.S.C. § 1915(e)(2)(B)(ii) (a district court “shall dismiss the
case at any time if the court determines that ... the action is legally
frivolous or... fails to state a claim on which relief may be
granted”).

Dismissal of the complaint is without prejudice to

plaintiff pursuing any relief that might be available under law
regarding his unpaid taxes, fines, and penalties.
IT IS THEREFORE ORDERED that the complaint is dismissed without
prejudice, and that plaintiff’s motion for appointment of counsel
(Doc. 5) is thereby moot.
IT IS SO ORDERED.
DATED:

This 10th day of July 2013 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge