El-Bey v. Rogalski
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/24/2015. (kns, Deputy Clerk)(c/m 3/24/15)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN ROGALSKI, JR.
Case No.: GJH-14-3784
This is an action brought by pro se Plaintiff Deborah El-Bey (“Plaintiff”) against
Defendant John Rogalski (“Defendant”), an accountant employed by Plaintiff’s employer,
Dunkirk Family Dentistry, for various causes of action relating to Defendant’s refusal to process
Plaintiff’s Form W-4 on which she claimed she was exempt from paying federal income taxes.
Defendant has filed a motion to dismiss. See ECF No. 6. Additionally, Plaintiff has filed a
motion for entry of default judgment and default summary judgment. See ECF No. 8. A hearing
is not necessary. See Loc. R. 105.6 (Md.). For the reasons discussed more fully below,
Defendant’s motion to dismiss is GRANTED and Plaintiff’s motion for entry of default
judgment and default summary judgment is DENIED.
Plaintiff, who claims affiliation with the Moorish-American community, has sued
Defendant for refusing to process her Form W-4. See ECF No. 1 at 1-4 ¶¶ 1-9. Specifically, on
November 11, 2014, Plaintiff submitted a new Form W-4 to Defendant in order to update her
name (which had been legally changed), as well as her federal income tax withholding status.
See id. at 5. On Plaintiff’s new Form W-4, she indicated that she was legally exempt from paying
any federal income taxes. See ECF No. 1-2. Upon receipt of Plaintiff’s updated Form W-4,
Defendant contacted the Internal Revenue Service (“IRS”) to seek its opinion on Plaintiff’s
claimed entitlement to exempt status. See ECF No. 6-2. The IRS informed Defendant that
Plaintiff was not entitled to her claimed status and that Defendant “must begin withholding
income tax from [Plaintiff’s] wages . . . .” Id. Based on the IRS’s directive, Defendant refused to
accept Plaintiff’s updated Form W-4 and continued to withhold federal income taxes from
Plaintiff’s paychecks. See ECF No. 1 at 3 at ¶¶ 6-7. Plaintiff therefore instituted the instant
lawsuit against Defendant which seeks various forms of equitable relief. Defendant has filed a
motion to dismiss. For the reasons stated below, the Court will GRANT Defendant’s motion.
Motion for Entry of Default and Default Summary Judgment
Prior to addressing Defendant’s motion to dismiss, the Court must address Plaintiff’s
motion for entry of default and default summary judgment. See ECF No. 8. According to
Plaintiff, she is entitled to entry of default because Defendant did not file his answer within
twenty-one (21) days of being served with the complaint. See id.
Ordinarily, a response to a complaint must be filed within twenty-one days of the date the
defendant was served with the complaint. See Fed.R.Civ.P. 12(a). A defendant may, however,
file a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. See Fed.R.Civ.P. 12(b)(6). When a motion to dismiss is filed pursuant to
Fed.R.Civ.P. 12(b)(6), the defendant’s time to file a responsive pleading to the complaint is
automatically extended until fourteen (14) days after notice of the court’s decision on the motion
to dismiss. See Fed. R. Civ. P. 12(a)(4)(A).
Here, Defendant was served with the complaint on December 29, 2014. See ECF No. 5.
Defendant therefore had until January 20, 2015 to file an answer or otherwise move to dismiss.
See Fed.R.Civ.P. 12(a)(4)(A). Ultimately, Defendant filed a motion to dismiss on January 16,
2015. See ECF No. 6. Thus, Defendant was not required to answer Plaintiff’s complaint until
fourteen days after the Court ruled on its motion. Because that date has not yet arrived, Plaintiff’s
motion for default is premature and must therefore be denied.
Motion to Dismiss
Turing to the merits of Plaintiff’s complaint, Plaintiff seeks various forms of equitable
relief arising from Defendant’s refusal to process her updated Form W-4. Defendant has moved
to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be
granted. Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if it
“fails to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). This rule’s
purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006). To that end, the Court bears in mind the requirements of
Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief,” as
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Iqbal, 556 U.S. at 678-79. “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 663. Here, Plaintiff’s claims are facially
First, Plaintiff contends that Defendant violated her due process rights by refusing to
process her updated Form W-4. See ECF No. 1 at 5 at ¶ 3. Of course, only governmental actors
can violate constitutional due process rights. See, e.g., Edmonson v. Leesville Concrete Co., Inc.,
500 U.S. 614, 619 (1991) (citing Nat. Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191
(1988)) (“The Constitution’s protections of individual liberty and equal protection apply in
general only to action by the government.”); Canadian Transp. Co. v. United States, 663 F.2d
1081, 1093 (D.C. Cir. 1980) (“[P]rivate citizens, acting in their private capacities, cannot be
guilty of violating due process rights. The Fifth Amendment is a restraint on the federal
government, not on private citizens.”); Jenkins v. Gaylord Entm’t Co., Case No.11-02869, 2012
WL 11001, at *9 (D. Md. Jan.3, 2012) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1974)) (“there must be a ‘sufficiently close nexus’ between the state and the private entity’s
contested action such that the private entity’s action ‘may be fairly treated as that of the [s]tate
itself’”). Plaintiff’s complaint, however, is devoid of any allegations creating a plausible
inference that one could fairly attribute Defendant’s action to the state. Indeed, Plaintiff’s
complaint expressly alleges that, at all relevant times, Defendant was acting in his private
capacity as an accountant in a privately owned family dentistry practice. See ECF No. 1 at 2 at ¶
4. The Court must therefore dismiss Plaintiff’s due process claim.
Next, Plaintiff contends that Defendant has engaged in “human trafficking/slave
trading/de-nationalization” in violation of Section 12 of the “Original Thirteenth Amendment to
the Constitution . . . .” ECF No. 1 at 7 at ¶ 7. Section 12 of the “original thirteenth amendment”
on which Plaintiff relies refers to an amendment originally proposed by Senator Saulsbury which
reads: “The traffic in Slaves with Africa is hereby forever prohibited on pain of death and the
forfeiture of all the rights and property of persons engaged therein; and the descendants of
Africans shall not be citizens.” That proposed section, however, did not become a part of the
Thirteenth Amendment, or any other part of the Constitution. Defendant could therefore not have
violated this section of the Thirteenth Amendment. See Momient-El v. State of Ill., No. 92 C
3599, 1992 WL 220586, at *1 (N.D. Ill. Sept. 4, 1992) (dismissing Thirteenth Amendment claim
based on Senator Saulsbury’s proposed amendment where the plaintiff “neglects to mention 
that the proposed amendment, with its twenty sections, was defeated on the same day Senator
Saulsbury made his motion”). Nor could Defendant have violated the Thirteenth Amendment in
its adopted form.
The Thirteenth Amendment provides, in pertinent part:
Neither slavery nor involuntary servitude, except as a punishment
for crime whereof the party shall have been duly convicted, shall
exist within the United States, or any place subject to their
U.S. Const. amend. XIII, § 1. Put simply, Plaintiff has not alleged any facts to suggest that she
has been the victim of slavery or involuntary servitude. Plaintiff’s Thirteenth Amendment claim
therefore fails for this additional reason.
Plaintiff has also brought claims for conspiracy against rights under 18 U.S.C. §§ 241 and
242. These are criminal statutes, however, and therefore provide for no private right of action.
See Taccino v. City of Cumberland, Md., No. 09-2703, 2010 WL 3070146, at *2 (D. Md. Aug. 5,
2010) (“While criminal penalties may arise under [18 U.S.C. § 241], there is no authority given
for private citizens to bring a civil suit for damages under this provision.”); Fromal v. Lake
Monticelle Owners’ Ass’n., Inc., No. 05-00067, 2006 WL 167894, at *1 (W.D. Va. Jan. 23,
2006) (recognizing that “18 U.S.C. §§ 241 and 242 and 18 U.S.C. § 1341 are criminal statutes
and create no private rights of action”), aff’d sub nom. Fromal v. Lake Monticello Owners’ Ass’n
Inc., 223 F. App’x 203 (4th Cir. 2007). As such, the Court must dismiss Plaintiff’s claims
brought under 18 U.S.C. §§ 241 and 242.
Violation of the Internal Revenue Code – 26 U.S.C. § 3402
Next, Plaintiff contends that Defendant has violated 26 U.S.C. § 3402 of the Internal
Revenue Code by withholding federal income taxes in an amount different than what she
requested. See ECF No. 1 at 6-7 at ¶¶ 4-6. However, § 3402, which requires employers to
withhold income taxes, does not create a private right of action for citizens. See e.g., Rumfelt v.
Jazzie Pools, Inc., No. 11-217, 2011 WL 2144553, at *6 (E.D. Va. May 31, 2011) (recognizing
“there is no private right of action permitting employees to sue employers for failing to withhold
taxes”); Spilky v. Helphand, No. 91-3045, 1993 WL 159944, at *4 (S.D.N.Y. May 11, 1993)
(concluding that “there is no evidence that Congress intended to provide a private cause of action
under [§ 3402 of] the Internal Revenue Code for an employee who alleges that his employer
failed to make the required withholdings and contributions”); DiGiovanni v. City of Rochester,
680 F. Supp. 80, 83 (W.D.N.Y. 1988) (“The language of § 3402 . . . does not suggest that th[is]
statute [was] intended to create federal rights for the especial benefit of a class of employees,
but rather that [it was] intended to benefit the Government through outlining a general scheme
for the withholding of tax from wages.”). Accordingly, Plaintiff’s claim for a violation of § 3402
must be dismissed.
Finally, Plaintiff seeks various forms of equitable relief, including (1) an order “requiring
. . . Defendant  to accept [her] W-4 withholding exemption with her new . . . exemption status”;
(2) an “injunction prohibiting  Defendant from withholding [Plaintiff’s] wages”; and (3) an
order “directing  Defendant to pay [Plaintiff] $950 in restitution for the wages illegally
withheld by  Defendant.” ECF No. 1 at 9 at ¶¶ 1-3. At their core, these requests are all
premised on Plaintiff’s erroneous belief that she is not obligated to pay federal income taxes
because of her claimed association with the Moorish-American community. See ECF No. 1-3. Of
course, the law does not support such a position. “All persons in the United States who receive
earned income or remuneration or unearned income are required to file tax returns and, if the
income is sufficient, must pay taxes.” Bey v. City of New York D.O.C., No. 97-4866 (RPP), 1997
WL 576090, at *2 (S.D.N.Y. Sept. 17, 1997). Plaintiff is no different. Nor has she demonstrated
any legal entitlement to the tax exemption that she claims. Although she may dislike it, “[t]he
withholding of taxes from one’s wages is simply a recognized aspect of life.” El Bey v.
MTA/New York, No. 00-2504, 2001 WL 487410, at *2 (S.D.N.Y. May 8, 2001). Accordingly, the
Court must deny Plaintiff’s requested equitable relief.
For the reasons stated above, the Court will grant Defendant’s motion to dismiss and will
deny Plaintiff’s motion for entry of default and default summary judgment.
Dated: March 24, 2015
George Jarrod Hazel
United States District Judge
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