Pomerenke v. Bird

Filing 4

ORDER denying as moot 3 Motion for TRO; denying 2 Application on Proceed in District Court without Prepaying Fees or Costs (Written Opinion). Signed by Senior Judge David S. Doty on 8/17/2012. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1757(DSD/JJG)
Kevin David Pomerenke,
Plaintiff,
ORDER

v.
Cheryl Bird c/o I.R.S.,
Defendant.

This matter is before the court upon the pro se application to
proceed in forma pauperis by plaintiff Kevin David Pomerenke.
Based on a review of the file, and for the following reasons, the
court denies the application and dismisses this action under 28
U.S.C. § 1915(e)(2)(B)(ii).

BACKGROUND
Pomerenke filed for Chapter 7 bankruptcy on July 16, 2009.
Compl. ¶ 7.
Court

for

On October 24, 2009, the United States Bankruptcy
the

District

of

Minnesota

Pomerenke’s debt under 11 U.S.C. § 727.

granted

a

discharge

of

Id. ¶ 7; id. Ex. 1.

At some point thereafter, defendant, Cheryl Bird, an agent of
the Internal Revenue Service (IRS) ordered Pomerenke’s employer to
garnish 75 percent of his wages to recover unpaid taxes.

Id. ¶ 8.

Pomerenke filed the instant action, claiming violation of the
“Bankruptcy Act, Title 15 Sec. 1692 (FDCPA), [and] Title 18 Color
of Law” and seeking to proceed in forma pauperis.

Specifically,

Pomerenke seeks “full restitution of all monies taken since the
bankruptcy on October 24, 2009,” “clearing of all records i.e.: tax
liens associated with the I.R.S. up to and including bankruptcy”
and “full release sent to employer so no further action on my
paychecks can be taken from me.”

DISCUSSION

When reviewing an application to proceed in forma pauperis, a
court “shall dismiss the case at any time if the court determines
that ... the action ... fails to state a claim on which relief may
be granted.”
I.

28 U.S.C. § 1915(e)(2)(B)(ii).

Bankruptcy Act
Pomerenke first claims that his taxes were discharged in

bankruptcy.

However, taxes “on or measured by income or gross

receipts for a taxable year ending on or before the date of the
filing of the petition — for which a return, if required, is last
due, including extensions, after three years before the date of the
filing

of

the

petition”

are

not

discharged

in

a

Chapter

7

bankruptcy. 11 U.S.C. §§ 523, 507(a)(8). Therefore, the complaint
fails to state a claim under the Bankruptcy Act.
II.

Fair Debt Collection Practices Act
Pomerenke next claims that Bird has violated the Fair Debt

Collection Practices Act (FDCPA)by garnishing his wages to satisfy
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his tax obligations.

The purpose of the FDCPA is to “eliminate

abusive debt collection practices by debt collectors.” 15 U.S.C.
§ 1692(e).

For purposes of the FDCPA, a debt must arise “out of a

transaction in which the money, property, insurance, or services
which

are

the

subject

of

the

transaction

personal, family, or household purposes.”

are

primarily

Id. § 1692a(5).

for

Taxes,

however, are not used primarily for personal, family or household
purposes; they are for general, communal use. See Staub v. Harris,
626 F.2d 275, 279 (3d Cir. 1980).
for purposes of the FDCPA.

As a result, they are not debts

Id. Moreover, Bird is not a “debt

collector” as defined by the FDCPA.

The term debt collector does

not include “any officer or employee of the United States or any
State to the extent that collecting or attempting to collect any
debt is in the performance of his official duties.”
§ 1692(a)(6)(C).

15 U.S.C

Therefore, the complaint fails to state a claim

under the FDCPA.
III.

Title 18 Color of Law
The court construes Pomerenke’s final claim as a claim under

18 U.S.C. § 242.1

Section 242 of Title 18 of the United States

Code is a criminal statute, which does not provide a basis for a
private cause of action.

United States v. Wadena, 152 F.3d 831,

846 (8th Cir 1998) (citing Cok v. Cosentino, 876 F.2d 1, 2 (1st

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The court liberally construes all claims in a pro se
complaint.
See Smith v. St. Bernards Reg’l Med. Ctr., 19 F.3d
1254, 1255 (8th Cir. 1994).
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Cir. 1989) (“Only the United States as prosecutor can bring a
complaint under 18 U.S.C. §§ 241-242 ... These statutes do not give
rise to a civil action for damages.”)); accord Johnson v. D.C.
Criminal Justice Act, 305 F. App’x 662, 662 (D.C. Cir. 2008) (“To
the extent appellant alleges violations of 18 U.S.C. § 241 and 18
U.S.C. § 242, the district court properly dismissed these claims,
because there is no private right of action under these criminal
statutes.”). Therefore, the complaint fails to state a claim under
Title 18.2

CONCLUSION
Having determined that the complaint fails to state a claim on
which relief may be granted, the court must dismiss this action.
28 U.S.C. § 1915(e)(2)(B)(ii). Accordingly, based on the above, IT
IS HEREBY ORDERED that:
1.

The application to proceed in forma pauperis [ECF No. 2]

is denied;
2.

The action is dismissed with prejudice; and

2

The claim also fails if the court were to construe the claim
under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). A
taxpayer cannot maintain a Bivens claim against IRS agents for taxcollection and assessment activity. Searcy v. Donelson, 204 F.3d
797, 798 (8th Cir. 2000).
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3.

The motion for a temporary restraining order [ECF No. 3]

is denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

August 17, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court

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