Donaldson vs. United States Department of Treasury, et al.

Filing 6

MEMORANDUM AND ORDER granting 4 Plaintiff's Motion for Leave to Proceed in forma pauperis; the clerk of court shall take the appropriate steps to serve defendants with the summons and complaint; and granting in part and denying in part 5 Pla intiff's Motion for Mandatory Judicial Notice and Request to File Under Seal. The clerk shall grant access to sealed document(s) to counsel of record. Pro hac vice attorneys must obtain sealed document(s) from local counsel. See Memorandum and Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 9/18/17. Mailed to pro se party Joseph V. Donaldson by certified mail; Certified Tracking Number: 7012 1640 0000 9096 6319. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSEPH V. DONALDSON,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
TREASURY, et al.,
Defendants.

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Case No. 17-1213-EFM-GEB

MEMORANDUM AND ORDER
Plaintiff brings this case against the U.S. Department of Treasury, Internal
Revenue Service (“IRS”), and IRS Revenue Officer Mark Boston to protest liens against
Plaintiff’s property for non-payment of income taxes and to seek damages for the alleged
tortious actions of the defendants. The matter is now before the Court on Plaintiff’s
Motion to Proceed without Prepayment of Fees (ECF No. 4) and Plaintiff’s Motion for
Mandatory Judicial Notice (ECF No. 5) and related request to file his motion under seal
(ECF No. 5). For the reasons outlined below, Plaintiff’s Motion to Proceed without
Payment of Fees (ECF No. 4) is GRANTED; Plaintiff’s Motion for Mandatory Judicial
Notice (ECF No. 5) is GRANTED in part and DENIED in part; and Plaintiff’s
Request to file his Motion for Judicial Notice under seal (ECF No. 5) is GRANTED in
part and DENIED in part.

I.

Plaintiff’s Motion to Proceed without Prepayment of Fees (ECF No. 4)
Under 28 U.S.C. § 1915(a), the Court has the discretion1 to authorize the filing of

a civil case “without prepayment of fees or security thereof, by a person who submits an
affidavit that . . . the person is unable to pay such fees or give security thereof.”
“Proceeding in forma pauperis in a civil case ‘is a privilege, not a right—fundamental or
otherwise.’”2 After careful review of Plaintiff’s attached affidavit of financial resources
(ECF No. 4, sealed), and the comparison of his monthly income to his monthly expenses,
the Court finds he is financially unable to pay the filing fee.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed without
Prepayment of Fees (ECF No. 4) is GRANTED. Because Plaintiff proceeds in forma
pauperis, the clerk of the court shall take the appropriate steps to serve Defendants with
the summons and Complaint as provided under 28 U.S.C. § 1915(d) and Fed. R. Civ. P.
4(c)(3).

II.

Plaintiff’s Motion for Mandatory Judicial Notice and Request to File Under
Seal (ECF No. 5)
Plaintiff asks the Court to take “mandatory judicial notice” of matters set forth in

his motion, as well as 34 pages of attachments. A majority of his motion contains—
verbatim—certain sections of federal statutes, including the Tax Code; excerpts from the
Internal Revenue Manual; and excerpts from case law. Only his first paragraph asks the
Court to take judicial notice of his “private and confidential proprietary record, submitted
1

Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26,
2000) (citing Cabrera v. Horgas, 173 F.3d 863, at *1 (10th Cir. April 23, 1999)).
2
Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
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in camera to the Court” (see Motion, ECF No. 5-1, ¶ 1). Plaintiff refers to these
documents as his “PRIVATE RECORD” and describes the record as containing a
contract between Plaintiff and the Internal Revenue Service.
Federal Rule of Evidence 201 permits the court to take judicial notice of
adjudicative facts.3 Under Rule 201(b), “The court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”4 Adjudicative facts are “the facts that
normally go to the jury in a jury case” and relate to “the parties, their activities, their
properties, their businesses.”5 Judicial notice essentially acts “as a substitute for the
conventional method of taking evidence to establish facts.”6
Although it is within the court’s discretion to take notice of particular facts,7
“[b]ecause the effect of judicial notice is to deprive a party of the opportunity to use
rebuttal evidence, cross-examination, and argument to attack contrary evidence, caution
must be used in determining that a fact is beyond controversy under Rule 201(b).”8
“Judicial notice permits a judge to accept ‘a matter as proved without requiring the party

3

Fed. R. Evid. 201(a).
Fed. R. Evid. 201(b).
5
Bain v. Cont'l Title Holding Co., Inc., No. 16-2326-JWL, 2017 WL 264545, at *2 (D. Kan. Jan.
20, 2017) (citing United States v. Iverson, 818 F.3d 1015, 1030 (10th Cir. 2016) (quoting United
States v. Gould, 536 F.2d 216, 219-20 (8th Cir. 1976)).
6
Id. at *2.
7
Schneider v. Citimortgage, No. 13-4094-SAC-KGS (Order, ECF No. 99) (D. Kan. Sept. 10,
2014) (citing Klein v. Zavaras, 80 F.3d 432, 435 n. 5 (10th Cir.1996)).
8
Blume v. Meneley, No. 00-2559-CM, 2003 WL 21143108, at *1 (D. Kan. Mar. 31, 2003)
(citing Int’l Star Class Yacht Racing Assoc. v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66 (2nd Cir.
1998)).
4

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to offer evidence of it.’ Because taking judicial notice removes a party’s evidentiary
burden, the doctrine demands that a court only notice ‘matters that are verifiable with
certainty.’”9
Plaintiff is correct that courts should take judicial notice of statutes.10
Additionally, excerpts from case law, federal regulations, and dictionary definitions are
capable of accurate and ready determination from a reliable source. Therefore, to the
extent Plaintiff submits excerpts of statutory law, federal regulations, case law, and
dictionary definitions in his motion, the Court GRANTS his request to take judicial
notice of the law and definition information recited in the first 10 pages of his motion,
excluding paragraph 1.
In ¶ 1 of his motion, Plaintiff also seeks the judicial notice of multiple other
documents attached to his motion (ECF No. 5-2, Ex. 1). These documents (although
described as a “contract” by Plaintiff) have no apparent logical order and contain such
items as a partially-completed UCC Financing Statement, a “common law copyright
notice,” various tax forms, and a document which purports to be a contract between
Plaintiff and the federal and state government and related agencies regarding their contact
with Plaintiff (ECF No. 5-2, Ex. 1). Many, if not all, of the documents appear to have
been both created and signed solely by Plaintiff, with the exception of those persons
witnessing or verifying his signature. But this Court, and others, have found that an

9

Hammons v. Unified Gov’t Wyandotte Co, No. 12-2028-JPO (Order, ECF No. 209) (D. Kan.
July 25, 2016) (citing United States v. Estep, 760 F.2d 1060, 1063 (10th Cir. 1985) (internal
citations omitted)).
10
Bledsoe v. U.S., No. 01-3168-RDR-CAW (Order, ECF No. 49) (D. Kan. Jan. 29, 2002) (citing
U.S. v. Coffman, 638 F.2d 192, 194 (10th Cir. 1980))
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affidavit or other document prepared by a moving party with an “interest in the litigation
is not a source of indisputable accuracy under Rule 201(b)(2).”11 Documents may not be
judicially noticed for the truth of the matters stated in them, 12 and federal courts largely
reject the use of human sources under Rule 201.13 Therefore, Plaintiff’s request for the
Court to take judicial notice of any document attached to his motion is DENIED, because
he has not established that the information contained in ¶ 1 of his Motion and the
attachments (ECF No. 5-2, Ex. 1) is “not subject to reasonable dispute” under Fed. R.
Evid. 201. However, the Court construes the information contained within the document
to supplement his claims, and the Clerk is hereby directed to treat the document (ECF
No. 5) as a “Supplement” to Plaintiff’s Complaint.
At filing, Plaintiff asked the Court to review his motion and its attachments (ECF
No. 5) in camera, and describes the documents as a “private and confidential proprietary
record” (ECF No. 5-1, at ¶1). Pending the Court’s review of the documents, the clerk’s
office filed both his motion and attachments under seal. But “federal courts have long
recognized a common-law right of access to judicial records.”14 Such a right originates
in the “public’s fundamental interest in understanding disputes that are presented to a

11

Bain v. Cont'l Title Holding Co., Inc., No. 16-2326-JWL, 2017 WL 264545, at *2 (D. Kan.
Jan. 20, 2017) (collecting cases).
12
Id. (citing 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §
201.12[3] (Mark S. Brodin, ed., Matthew Bender 2d ed. 2016)).
13
Id. (citing 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice &
Procedure § 5106.2 at 220 (2d. ed. 2005)).
14
United States v. Smith, No. 12-20066-31-KHV, 2016 WL 1312518, at *1 (D. Kan. Apr. 4,
2016) (citing United States v. Apperson, No. 14-3069, 2016 WL 898885, at *6 (10th Cir. Mar. 9,
2016) (citing Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007)).
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public forum for resolution.”15 To determine whether documents filed with the court
should be sealed from public viewing, “the Court weighs the public interest, which it
presumes is paramount, against the interests advanced by the parties.”16

The party

seeking to seal a portion of the record “must show that interests which favor nondisclosure outweigh the public interest in access to court proceedings and documents.”17
The movant “must articulate a real and substantial interest that justifies depriving the
public of access to the records that inform the Court’s decision-making process,”18 not
simply submit conclusory statements.
Other than his single statement professing the confidential and allegedly
proprietary nature of the documents, Plaintiff provides no other basis or argument
supporting his request to seal his motion and attachments. Plaintiff “does not specifically
explain how his interest in non-disclosure of the information outweighs the public interest
in open courts.”19 Therefore, Plaintiff’s request to seal his motion is DENIED in part, in
that the motion (ECF No. 5-1) must be unsealed and available to the public. However, on
close review of the documents, there are multiple disclosures of personal identifiers20
contained in the attachment to Plaintiff’s motion (ECF No. 5-2, Ex. 1). Plaintiff’s request
15

Id. (citing Nixon v. Warner Commc'ns, 435 U.S. 589, 599 (1978); Crystal Grower's Corp. v.
Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)).
16
Id. (citing Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011); Crystal Grower's, 616 F.2d
at 461).
17
Id. (citing Apperson, 2016 WL 898885, at *6; Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241
(10th Cir. 2012)).
18
Id. (citing Colony Ins., 698 F.3d at 1241; Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16
(1981)).
19
Id. (citing Apperson, 2016 WL 898885, at *7; Colony Ins., 698 F.3d at 1242).
20
Pages 5, 14, and 18 of Plaintiff’s attachment appears to contain Social Security numbers
and/or tax identification numbers, while page 15 is the apparent copy of a birth certificate. Such
information is prohibited in a public filing under Fed. R. Civ. P. 5.2
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to seal is therefore GRANTED in part, in that the attachment to the motion (ECF No. 52) must remain sealed and accessible only to Court users or attorneys admitted to this
case.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 18th day of September, 2017.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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