Ellis Warren v. Department of Treasury et al

Filing 7

ORDER Adopting 6 Report and Recommendation and Dismissing Plaintiff's Complaint. Signed by District Judge Thomas L. Ludington. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CAROL S. ELLIS WARREN,
Plaintiff,
v.

Case No. 15-cv-11367
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

DEPARTMENT OF TREASURY,
DEPARTMENT OF HOMELAND SECURITY, and
AI c/o IRS MO 64999-0025,
Defendants.
__________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING PLAINTIFF’S COMPLAINT
On April 14, 2015, Plaintiff Ellis Warren filed a pro se Complaint alleging that the IRS
withheld her tax refunds in 2013 and 2014 and did not credit her for amounts paid toward her
taxes in 2004.
On May 6, 2015, Magistrate Judge Patricia T. Morris issued a report recommending that
Plaintiff’s Complaint be dismissed sua sponte because Plaintiff did not show that she filed a
timely refund claim with the IRS in accordance with the jurisdictional limitations set forth in 26
U.S.C. § 7422(a). Rep. & Rec. 4-5, ECF No. 6. She noted that Plaintiff bears the burden of
demonstrating, on the face of the complaint, that the administrative claim requirements of §
7422(a) were met. Id. at 6. Since Plaintiff did not so demonstrate, the Court is without
jurisdiction to adjudicate her claims against the IRS. Judge Morris recommended dismissing
those claims without prejudice. As to the Department of Homeland Security, which Plaintiff also
names as a defendant, Judge Morris recommended that the complaint be dismissed for failure to

state a claim. The complaint, Judge Morris observed, contains no allegations against DHS, nor
does it explain how DHS fits into Plaintiff’s allegations.
Although the Magistrate Judge’s report explicitly stated that the parties to this action may
object to and seek review of the recommendation within fourteen days of service of the report,
neither Plaintiff nor Defendant filed any objections. The election not to file objections to the
Magistrate Judge’s report releases the Court from its duty to independently review the record.
Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and
recommendation waives any further right to appeal.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation,
ECF No. 6, is ADOPTED.
It is further ORDERED that Plaintiff’s Complaint, ECF No. 1, is DISMISSED with
prejudice as to Defendant Department of Homeland Security.
It is further ORDERED that Plaintiff’s Complaint, ECF No. 1, is DISMISSED without
prejudice for want of jurisdiction as to the remaining Defendants.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 28, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 28, 2015.
s/Karri Sandusky
Karri Sandusky, Acting Case Manager

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