Kendrick v. Wayne, County of et al

Filing 34

ORDER. Signed by District Judge Victoria A. Roberts. (CGre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES KENDRICK,
Plaintiff,

CASE NUMBER: 10-13752
HONORABLE VICTORIA A. ROBERTS

v.
WAYNE COUNTY, ET AL,
Defendants.
__________________________________/
ORDER
I.

INTRODUCTION
This matter is before the Court on the Internal Revenue Service’s and the United

States’ Motion to Dismiss. (Doc. 19).
The Court GRANTS the motion.
II.

BACKGROUND
On September 21, 2010, Plaintiff, a prisoner, filed a pro se Complaint against

Wayne County, the State of Michigan, the Internal Revenue Service, and the United
States of America, after several of his Freedom of Information Act (FOIA) requests were
denied. Plaintiff alleges the Defendants wrongfully withheld the information he
requested. He attempts to state claims for violation of his First and Fifth Amendment
rights, violation of the FOIA, violation of the Privacy Act, and common law negligence.
III.

STANDARD OF REVIEW AND ANALYSIS

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A.

Privacy Act Claims

Defendants say that to the extent Plaintiff alleges a claim under the Privacy Act
for Defendants’ failure to release his tax information, the claim must be dismissed
because Defendant is not authorized to request the information under the Privacy Act.
The Court agrees.
When reviewing a 12(b)(6) motion to dismiss, the trial court “must construe the
complaint liberally in the plaintiff’s favor and accept as true all factual allegations and
permissible inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.
1994) (citing Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976)). Although this
standard does not require “detailed factual allegations,” it requires more than the bare
assertion of legal conclusions unsupported by facts. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-577 (2007).
To survive a motion to dismiss, a complaint must allege enough facts that, if true,
show the claim for relief “is plausible on its face.” Id. at 570.

“[W]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’”
Ashcroft v. Iqbal, 129 S.Ct.1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).
Complaints filed by pro se litigants are to be construed liberally and are not to be
held to the same stringent standard as formal pleadings drafted by licensed attorneys.
Haines v. Kerner, 404 U.S. 519, 520 (1972). When examining a pro se complaint,
special care should be taken to determine whether any set of facts would entitle the
plaintiff to relief. Hughes v. Rowe, 449 U.S. 5, 10 (1980). However, it is not the role of
the Court “abrogate basic pleading essentials in pro se suits.” Wells v. Brown, 891 F.2d
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591, 594 (6th Cir. 1989).
The Privacy Act entitles an individual to access and to obtain copies of agency
records pertaining to himself. 5 U.S.C. § 552a(d)(1). However, the IRS and United
States say the Privacy Act does not govern access to tax information; they say tax
records are governed exclusively by § 6103 of the Internal Revenue Code (IRC).
They say the Privacy Act, which addresses records in general, is trumped by the more
specific provisions of § 6103 as a matter of statutory interpretation. The Court agrees.
Section 6103 of the IRC prohibits the IRS from disclosing a taxpayer’s return
information to the public. 26 U.S.C. § 6103(a). However, this section also requires the
IRS to disclose a taxpayer’s return information to that taxpayer, if the request is made in
writing. 26 U.S.C. §6103(e)(1).
Both the Seventh Circuit and the District of Columbia Circuit hold that a taxpayer
must request his tax records under § 6103 instead of the Privacy Act. See Cheek v.
IRS, 703 F.2d 271 (7th Cir. 1983); Lake v. Rubin, 162 F.3d 113 (D.C. Cir. 1998). These
appear to be the only circuit courts to have addressed this issue. This Court finds the
reasoning of these circuits persuasive, and agrees that Plaintiff must pursue his request
for his tax information under 26 U.S.C. § 6103.
Plaintiff fails to state a claim under the Privacy Act against the IRS and United
States; this claim is dismissed.

B.

Freedom of Information Act (FOIA) Claims

Defendants say the Court lacks subject matter jurisdiction over Plaintiff’s FOIA
claims. The Court agrees.
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To defeat a motion to dismiss for lack of subject-matter jurisdiction, "the plaintiff
must show that the complaint 'alleges a claim under federal law, and that the claim is
substantial.'" Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc.,
287 F.3d 568, 573 (6th Cir. 2002) (quoting Musson Theatrical, Inc. v. Fed. Express
Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)). The plaintiff "will survive the motion to
dismiss by showing 'any arguable basis in law' for the claims set forth in the complaint."
Id. (quoting Musson, 89 F.3d at 1248).
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally
come in two varieties: a facial attack or a factual attack.” Gentek Blding Products, Inc. v.
Steel Peel Litigation Trust, 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat. Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). If the attack on jurisdiction is a
facial attack on the complaint, the court must accept the allegations in the complaint as
true and construe them in a light most favorable to the non-moving party. United States
v. A.D. Roe Co., Inc., 186 F.3d 717, 721-722 (6th Cir 1999). If the attack is factual,
however, the court may weigh evidence and resolve factual disputes. Ohio Nat. Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
Here, Defendants do not question whether Plaintiff sufficiently alleges a FOIA
claim; instead, Defendants say Plaintiff cannot make a showing of all the elements of a
FOIA claim. Based on Plaintiff’s alleged inability to show each element of the claim,
Defendants say this Court lacks jurisdiction. The Court construes this as a factual attack
on subject matter jurisdiction.
Because the attack is factual, no presumption of truthfulness applies to Plaintiff’s
allegations. Genteck, 491 F.3d at 330. A factual attack is “a factual controversy, [and]
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the district court must weigh the conflicting evidence to arrive at the factual predicate
that subject-matter does or does not exist.” Id. “[A] trial court has wide discretion to
allow affidavits, documents and even a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
1990).
FOIA confers jurisdiction on district courts “to enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld.”
26 U.S.C. § 552(a)(4)(B). Under the FOIA, “federal jurisdiction is dependent upon a
showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’”
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980).
“Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies
to force an agency to comply with the FOIA’s disclosure requirements.” United States
Dept of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)
Defendants say Plaintiff cannot show they improperly withheld agency records;
they performed an adequate search, and no records were identified. Defendants say
they cannot improperly withhold records they do not have. They attach affidavits in
support; one is from the person who originally processed Plaintiff’s FOIA requests. She
explains the method of the searches performed, and says the searches produced no
results. She says she searched for Plaintiff’s Individual Master File by Plaintiff’s social
security number. She says the database she searched contains all information related
to tax returns filed by taxpayers and by third parties. She says the search turned up no
Individual Master File, so she ended her search. She says that without a master file
result, there are no other databases to search.
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Defendants ask the Court to find that it has no jurisdiction because their
reasonable search shows they do not possess any records to improperly withhold.
They say Plaintiff cannot rebut this evidence because he fails entirely to address
Defendants’ arguments. The Court agrees.
An agency must possess records in order to improperly withhold them under the
FOIA. See Kissinger, 445 U.S. at 155. Because the Defendants show they conducted
a good faith, reasonable search for the requested documents, and no responsive
documents were identified, they did not improperly withhold them. Absent an improper
withholding, the Court lacks jurisdiction to devise a remedy. See Vonderheide v. IRS,
194 F.3d 1315 (6th Cir. 1999) (unpublished) (affirming dismissal for lack of subject
matter jurisdiction where “IRS provided evidence in the form of affidavits that it had
conducted a good faith search and that it did not possess the requested documents”);
Robert v. Dept of Health and Human Servs, 78 Fed. Appx. 146 (2d Cir. 2003) (affirming
dismissal for lack of subject matter jurisdiction because agency did not possess
responsive documents, and plaintiff failed to show any improper withholding).
C.

The Court Lacks Jurisdiction Under 28 U.S.C. § 1357

Plaintiff also relies on a 28 U.S.C. § 1357 for subject matter jurisdiction:
“The district courts shall have original jurisdiction of any civil action
commenced by any person to recover damages for any injury to his
person or property on account of any act done by him, under any Act of
Congress, for the protection or collection of any revenues, or to enforce
the right of citizens of the United States to vote in any State.” 28 U.S.C. §
1357.
The Court fails to see how this statute applies to Plaintiff’s FOIA claims. This
statute confers jurisdiction to district courts for “revenue cases and voting rights cases.”
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City of Albuquerque v. U.S. Dept of Interior, 379 F.3d 901, 907 n.1 (10th Cir. 2004).
Moreover, FOIA does not authorize monetary damages as a remedy for violations. See
Savage v. FBI, 124 F.3d 199, 199 (6th Cir. 1997).
This statute does not confer jurisdiction for Plaintiff’s FOIA claims.
D.

Plaintiff’s Remaining Claims

Defendants argue that the remainder of Plaintiff’s claims must be dismissed
because the Court cannot exercise supplemental jurisdiction where it does not have
original jurisdiction; however, Defendants fail to address Plaintiff’s First and Fifth
Amendment claims. If Plaintiff states claims for violation of Constitutional rights, this
Court has jurisdiction over them, and may exercise supplemental jurisdiction over any
remaining state law claims pursuant to 28 U.S.C. § 1367(a).
Generally, this Court declines to consider dismissal of a claim unless a defendant
unambiguously requests its dismissal and states persuasive grounds in support.
However, Plaintiff proceeds in forma pauperis (IFP). When reviewing IFP complaints,
Congress empowered the Court to sua sponte dismiss the case at any time if the IFP
plaintiff fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

Upon review of Plaintiff’s Complaint, he fails to allege any facts in support of
either Constitutional claim. Accordingly, the Court dismisses Plaintiff’s First and Fifth
Amendment claims for failure to state a claim on which relief may be granted. See Fed.
R. Civ. P. 12(b)(6); 28 U.S.C. § 1915(e)(2)(B)(ii).
Because the Court dismisses all claims over which it has original jurisdiction, it
declines to exercise supplemental jurisdiction over any remaining state law claims. See
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28 U.S.C. § 1367(c).
IV.

CONCLUSION
Defendants’ motion to dismiss is GRANTED.
Plaintiff’s Privacy Act, First Amendment, and Fifth Amendment claims against the

IRS and United States are dismissed under 12(b)(6).
Plaintiff’s FOIA claims against the IRS and United States are dismissed under
12(b)(1).
The Court expresses no opinion on Plaintiff’s claims against Wayne County and
the State of Michigan. These Defendants have not yet been served. The Marshals will
continue their attempts to effectuate service on these Defendants.
IT IS ORDERED.

s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: June 29, 2011
The undersigned certifies that a copy of
this document was served on the
attorneys of record and Charles Kendrick
by electronic means or U.S. Mail on June
29, 2011.
s/Carol A. Pinegar
Deputy Clerk

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