Howze v. Internal Revenue Service

Filing 5

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion for Relief from Judgment. Within thirty-five (35) days of the date of the this Memorandum and Order, plaintiff shall show cause why this action should not be dismissed or file an amended complaint. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BRAD HOWZE,
Plaintiff,
v.

CIVIL ACTION NO.
14-10658-DPW

INTERNAL REVENUE SERVICE,
Defendant.
MEMORANDUM AND ORDER
For the reasons state below, the Court allows plaintiff’s
Motion (#2) for Leave to Proceed In Forma Pauperis; denies
plaintiff’s Motion (#3) for Relief from judgment; and directs
plaintiff to show good cause why this action should not be
dismissed or file an amended complaint.
BACKGROUND
Plaintiff Brad Howze, a resident of Boston, initiated this
action on February 27, 2014, by filing his self-prepared motion
for relief from judgment and complaint against the Internal
Revenue Service ("IRS").

He also filed an Application to Proceed

in District Court Without Prepaying Fees or Costs.
The factual allegations in the complaint consist of four
sentences.

Howze explains that he appealed an audit and, many

times over a period of one year, provided additional information.
He has yet to receive a response and he complains that the IRS
has acted in bad faith.

In his motion for relief from judgment,

he complains that the audit department failed to complete the
audit examination.

DISCUSSION
I.

The Motion to Proceed In Forma Pauperis

Upon review of Howze’s financial disclosures, the Court
finds that he lacks sufficient funds to pay the filing fee for
this civil action.

Thus, plaintiff’s Motion (#2) for Leave to

Proceed In Forma Pauperis is allowed.
II.

Screening

When a plaintiff is permitted to proceed without prepayment
of the filing fee, summonses do not issue until the Court reviews
the complaint and determines that it satisfies the substantive
requirements of 28 U.S.C. § 1915.

Section 1915 authorizes

federal courts to dismiss complaints sua sponte if the claims
therein lack an arguable basis in law or in fact, fail to state a
claim on which relief may be granted, or seek monetary relief
against a defendant who is immune from such relief.

See 28

U.S.C. § 1915(e)(2); Neitzke v. Williams, 490 U.S. 319, 325
(1989) Denton v. Hernandez, 504 U.S. 25, 32-33 (1992);
Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir.
2001).
Additionally, a federal court is a court of limited
jurisdiction, and may adjudicate only those cases authorized by
the Constitution and by Congress. See Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d
391 (1994).

Here, it does not appear that the Court has subject

matter jurisdiction over this action.
2

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."); see
Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) ("The objection
that a federal court lacks subject-matter jurisdiction may be
raised by a party, or by a court on its own initiative, at any
stage in the litigation, even after trial and the entry of
judgment.") (internal citation omitted).
In conducting the preliminary screening, the Court construes
plaintiff's pro se complaint generously.
404 U.S. 519, 520 (1972);

See Haines v. Kerner,

Rodi v. New Eng. Sch. of Law, 389 F.3d

5, 13 (1st Cir. 2004).
III. Discussion
Plaintiff’s complaint does not specifically allege this
Court's jurisdiction for the claims he raises.

Even with a

liberal construction, this action is subject to dismissal.
A.

Pleading Requirements

Howze’s complaint fails to to comply with the requirements
of Rules 8 and 10 of the Federal Rules of Civil Procedure. Rule
10 of the Federal Rules of Civil Procedure provides for the form
of pleadings while Rule 8 governs the substance of the pleadings.
The complaint fails to comply with Rule 10(b) because it does not
contain numbered paragraphs. See Fed.R.Civ.P. 10(b) (“A party
must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of
circumstances.”).
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Rule 8(a) requires a plaintiff to include in a complaint,
among other things, “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2).

This statement must “ ‘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, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007) (alteration in original) (quoting
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)); see Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir.
2005).
Notwithstanding that Howze is proceeding pro se and lacks
legal skills, he bears the burden to set forth claims.

The

complaint fails to provide any details or relevant information
necessary to set forth a cognizable claim.

Although it is clear

that he alleges he had not received a response from the IRS, the
complaint provides no factual basis for any claim against the
IRS.

It is not for this Court to fashion Howze's complaint.

“District courts are not required to conjure up questions never
squarely presented to them or to construct full blown claims from
sentence fragments.” Terrance v. Cuyahoga County, 2005 WL 2491531
at *1 (N.D.Ohio 2005) citing Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir.1985). See McDonald v. Hall, 610 F.2d 16
(1st Cir.1979) (court is not required to “conjure up unpled
allegations,” notwithstanding duty to be less stringent with pro

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se complaints). Such an exercise by the Court would “ ‘require
... [the courts] to explore exhaustively all potential claims of
a pro se plaintiff, ... [and] would ... transform the district
court from its legitimate advisory role to the improper role of
an advocate seeking out the strongest arguments and most
successful strategies for a party.’ “ Terrance, 2005 WL 2491531
at *1, quoting Beaudett, 775 F.2d at 1278.
The Court finds the complaint, as pled, fails to state a
claim and this action is subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
B.

Sovereign Immunity

Howze names the IRS as the sole defendant.
the IRS are against the United States.

Actions against

Under the long-standing

doctrine of sovereign immunity, actions against the United States
may be maintained only with its express consent to suit.

FDIC

v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308
(1994); United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361,
108 L.Ed.2d 548 (1990). "Sovereign immunity is jurisdictional in
nature." Meyer, 510 U.S. at 475.

Absent a showing of waiver,

dismissal of a suit against the United States or its agencies is
required. Id.; Villanueva v. United States, 662 F.3d 124, 126
(1st Cir. 2011).
In order to maintain a suit against the IRS, the taxpayer
must first exhaust all administrative remedies. See 26 U.S.C. §

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7422(a) ("No suit ... shall be maintained in any court for the
recovery of any internal revenue tax alleged to have during
erroneously or illegally assessed ... until a claim for refund or
credit has been duly filed with the Secretary ...."); see also 26
C.F.R. § 301.7432–1(e) (requiring administrative claim before
filing action for failure to release a lien), 26 C.F.R. §
301.7433–1(d) (requiring administrative claim before filing
action for certain unauthorized collection actions).
Congress has provided a limited waiver of sovereign immunity
by allowing taxpayers to recover civil damages for certain
unauthorized collection activities by the IRS, but only when IRS
employees cause the damage through reckless or intentional
disregard of the Internal Revenue Code or regulations during the
collection of a federal tax.

See 26 U.S.C. § 7433(d)(1); White

v. C.I.R., 899 F. Supp. 767, 772 (D. Mass. 1995) (Ponsor, J.).
Here, Howze has not alleged that he exhausted administrative
remedies, and it is unclear whether he has followed the available
administrative procedures.

As a result, this action is may be

subject to dismissal for lack of subject-matter jurisdiction.
C.

Anti-Injunction Act

Even assuming that the United States has waived its
sovereign immunity, the Anti-Injunction Act would still limit the
authority of this court to order the relief apparently sought by
Howze, at least insofar as he seeks to have this Court order the

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closing of an audit.

The Act provides, with exceptions not

relevant here, "no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any
court by any person.... " 26 U.S.C. § 7421(a); see also Nat'l
Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2582 (2012)
("This statute protects the Government's ability to collect a
consistent stream of revenue, by barring litigation to enjoin or
otherwise obstruct the collection of taxes. Because of the
Anti–Injunction Act, taxes can ordinarily be challenged only
after they are paid, by suing for a refund.").

The purpose of

the Act is to protect "the Government's need to assess and
collect taxes as expeditiously as possible with a minimum of
pre-enforcement judicial interference."

Bob Jones Univ., v.

Simon, 416 U.S. 725, 736 (1974) (internal citations omitted).
The Supreme Court has construed the Anti–Injunction Act to
include an equitable exception, allowing a plaintiff to file an
action to restrain the collection of taxes if the plaintiff shows
that "under no circumstances could the Government ultimately
prevail," and if "equity jurisdiction otherwise exists."

Enochs

v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct
1125, 8 L.Ed.2d 292 (1962).
Nothing in the complaint can lead one to conclude that the
government could not, under any circumstance, prevail on the
merits.

Therefore, the Anti-Injunction Act precludes this court

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from issuing the injunctive relief Howze seeks.
Plaintiff will be granted additional time to file an amended
complaint and/or show good cause why this action should not be
dismissed for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
ORDER
Based upon the foregoing, it is hereby ORDERED
1.

The Plaintiff's Application to Proceed in District
Court Without Prepaying Fees or Costs (Docket No. 2) is
ALLOWED;

2.

The Plaintiff’s plaintiff’s Motion for Relief from
Judgment (Docket No. 3) is Denied;

3.

Within thirty-five (35) days of the date of the this
Memorandum and Order, plaintiff shall show cause why
this action should not be dismissed or file an amended
complaint; and

4.

No summonses shall issue pending further Order of the
Court.

SO ORDERED.
April 11, 2014
DATE

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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