Acevedo v. Bank of America, N.A. et al

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [Doc. 2] IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the Court lacks jurisdiction over the complaint and because plaintiff's complaint is legally frivolous. An appropriate order of dismissal shall accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 4/22/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL E. ACEVEDO,

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Plaintiff,
v.
BANK OF AMERICA, N.A., et al.,
Defendants.

No. 4:13-CV-173 CAS

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Michael E. Acevedo for leave to commence
this action without prepayment of the filing fee pursuant to 28 U.S.C. § 1915. Upon consideration
of the financial information provided with the motion, the Court finds that plaintiff is financially
unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. Additionally, the Court has reviewed the complaint
and amended complaint, and will dismiss the case pursuant to Federal Rule of Civil Procedure
12(h)(3) and 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted,
or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous
if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328
(1989). An action fails to state a claim upon which relief can be granted if does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.
Ct. 1955, 1974 (2007).

In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint
the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must
also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly
baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974).
The Complaint
Plaintiff Michael E. Acevedo brings this action seeking the removal or cancellation of
various notices of tax liens. Plaintiff is also seeking reimbursement of certain social security
benefits and veterans benefits which appear to have been garnished by either the Internal Revenue
Service (“IRS”) or the State of California Franchise Tax Board. Named as defendants are Bank of
America, N.A. and the State of California Franchise Tax Board.
The allegations of the complaint and amended complaint are difficult to discern with any
precision. Plaintiff appears to be contesting a tax lien imposed upon him by the State of California
Franchise Tax Board and directed to Bank of America, N.A. It is unclear from his pleadings
whether funds have been garnished from his bank account or if a lien has been placed on his
disability paychecks from either the Social Security Administration or Veterans Administration.
Plaintiff appears to be arguing that pursuant to 42 U.S.C. § 1983 his disability funds are immune
from levy, attachment or garnishment, and he asserts that defendants are acting unlawfully in
attaching such benefits and perhaps providing them to the State of California Franchise Tax Board.
Discussion
To the extent that plaintiff is seeking an order from this Court to modify the various notices
of tax liens he has received from the State of California Franchise Tax Board, this Court lacks
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jurisdiction to provide such an order. See 28 U.S.C. § 1341. The Tax Injunction Act provides that
“district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax
under State law where a plain speedy and efficient remedy may be had in the court of such State.”
Id. The United States Supreme Court has directly addressed California’s system of levying and
appealing tax-related complaints and found it to be plain, speedy and efficient. California v. Grace
Brethren Church, 457 U.S. 393 (1982). Consequently, federal district courts lack jurisdiction to
issue injunctive and declaratory relief. Ford v. California State Bd. of Equalization, 722 F.2d 496,
498 (9th Cir. 1983). In order to appeal a decision regarding his tax liability in the State of
California, plaintiff must first contact the California Board of Equalization and conform with the
administrative appeals process.
Plaintiff’s contentions regarding the unlawfulness of the garnishment of his federal benefits
are equally without merit, and therefore are subject to dismissal. Title 42, Section 407(a) of the
United States Code provides:
The right of any person to any future payment under this subchapter [Federal OldAge, Survivors and Disability Insurance Benefits] shall not be transferable or
assignable, at law or in equity, and none of the monies paid or payable or rights
existing under this subchapter shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the operation of any bankruptcy or
insolvency law.
42 U.S.C. § 407(a). However, 42 U.S.C. § 407(b) provides that § 407(a) may be modified by other
provisions of law, so long as the modification is by “express reference to this section.” Internal
Revenue Code § 6334(c), 26 U.S.C. § 6334(c), provides an express reference to § 407(a), and states
that notwithstanding any other law of the United States (including § 407 of the Social Security Act),
no property or rights to property shall be exempt from levy other than the property specifically made

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exempt by subsection (a) of § 6334. See 26 U.S.C. § 6334(c). Although subsection (a) of § 6634
lists various property exempt from levy by the IRS, social security benefits are not one of them.
Accordingly, Social security benefits are subject to levy by the IRS. See, e.g., Acevedo v. United
States, 2008 WL 2098129, at *3 (E.D. Mo. May 16, 2008); United States v. Cleveland, 1994 WL
411376, at *3 (N.D. Ill. Aug. 3, 1994). Pursuant to the these authorities, it is clear that the United
States, through its agents, may garnish the plaintiff’s monthly social security benefits until the
plaintiff’s outstanding federal income taxes and any assessed penalties are paid. Accordingly,
plaintiff’s claims with respect to the garnishment of his social security benefits are without merit.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [Doc. 2]
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint because the Court lacks jurisdiction over the complaint and because
plaintiff’s complaint is legally frivolous.
An appropriate order of dismissal shall accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 22nd day of April, 2013.

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