Simones v. Dominguez et al
Filing
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MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 6 Plaintiff's Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees; DENYING 7 Plaintiffs Ex Parte Application for Injunctive Relief in Affidavit Form for an Order for Agent Teresa Dominguez to Cease All Collection Activity and Sale of Property Belonging to James Simones; and DISMISSING 1 Plaintiff's Complaint without prejudice. Plaintiff shall have 14 days from entry of this Order to file an amended complaint. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAMES SIMONES,
Plaintiff,
v.
No. 17cv495 WJ/SCY
TERESA DOMINGUEZ,
JOHN DOES, and
MICHAEL TAVENNER (pending),
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on Plaintiff’s Complaint, Doc. 1, filed April 18,
2017, on his Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees, Doc.
6, filed May 4, 2017 (“IFP Motion”),1 and on his Ex Parte Application for Injunctive Relief in
Affidavit Form for an Order for Agent Teresa Dominguez to Cease All Collection Activity and
Sale of Property Belonging to James Simones, Doc. 7, filed May 4, 2017 (“Motion to Restrain
Collection”). For the reasons stated below, the Court will GRANT the IFP Motion, DISMISS
the Complaint without prejudice, and DENY his Motion to Restrain Collection. Plaintiff shall
have 14 days from entry of this Order to file an amended complaint. Failure to timely file an
amended complaint may result in dismissal of this case without prejudice.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
The Court construes Plaintiff’s Motion for Leave to Proceed on Appeal Without Prepayment of
Costs or Fees as a motion to proceed in this District Court without prepayment of costs or fees.
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submits an affidavit that includes a statement of all assets the person possesses and that the
person is unable to pay such fees.
When a district court receives an application for leave to proceed in forma
pauperis, it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted.
Thereafter, if the court finds that the allegations of poverty are untrue or that the
action is frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d
58, 60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in
light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669
(10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)). “The statute
[allowing a litigant to proceed in forma pauperis ] was intended for the benefit of those too poor
to pay or give security for costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344
(1948). While a litigant need not be “absolutely destitute,” “an affidavit is sufficient which
states that one cannot because of his poverty pay or give security for the costs and still be able to
provide himself and dependents with the necessities of life.” Id. at 339.
The Court will grant Plaintiff’s IFP Motion because: (i) Plaintiff is 70 years old, disabled,
and unemployed; (ii) the Internal Revenue Service (“IRS”) has seized Plaintiff’s vehicle, all the
funds in his bank account and a portion of his Social Security benefits; and (iii) Plaintiff owns
no assets.
Dismissal of the Complaint and Denial of Motion to Restrain Collection
This case arises out of the seizure by the IRS of Plaintiff’s truck, travel trailer, all of the
funds from his bank account, and portions of his Social Security and veterans disability benefits.
See Complaint ¶ 4 at 2, ¶ 35 at 5. Plaintiff alleges that the seizures were unlawful because the
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IRS did not have probable cause or a court order, and because some IRS procedures were
allegedly not followed. Plaintiff states that the “Prime Question Before the Court” is:
Does a Person purporting to act for the government restricted by the enclave
clause of the Constitution have the authority to seize Claimant’s private property
in the private sector (Moriarty New Mexico) without a properly signed warrant
based upon probable cause, supported by an oath, and issued by a bonafide judge?
Complaint ¶ 102 at 16. Plaintiff seeks to have his seized property returned and for the Court to
restrain all collection activity by the IRS. See Complaint ¶ 104 at 17; Motion to Restrain
Collection at 6 (seeking “injunctive relief to restrain Agent Teresa L. Dominguez and her fellow
lawbreakers . . . from all arbitrary and oppressive collection activity”). Plaintiff also alleges that
Defendants violated his constitutional rights “to give rise to liability under 42 U.S.C. § 1983.”
Complaint ¶ 45 at 7, ¶ 55 at 9.
The Court will dismiss Plaintiff’s claims in his Complaint seeking to restrain the IRS’s
collection activity and deny his Motion to Restrain. The Anti-Injunction Statute prohibits suits
to restrain the assessment or collection of taxes:
Tax.--Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b),
6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and
7436, no suit for the purpose of restraining the assessment or collection of any tax
shall be maintained in any court by any person, whether or not such person is the
person against whom such tax was assessed.
26 U.S.C. § 7421(a). The Complaint does not allege that this case falls within any of the
exceptions listed in the Anti-Injunction Statute.
The Court will also dismiss Plaintiff’s claims seeking the return of his seized property
and damages. Statutes governing suits for refunds and damages require that a taxpayer first file a
claim for a refund with the IRS and exhaust administrative remedies for damages available to the
plaintiff within the IRS:
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No suit prior to filing claim for refund.--No suit or proceeding shall be
maintained in any court for the recovery of any internal revenue tax alleged to
have been erroneously or illegally assessed or collected, or of any penalty claimed
to have been collected without authority, or of any sum alleged to have been
excessive or in any manner wrongfully collected, until a claim for refund or credit
has been duly filed with the Secretary, according to the provisions of law in that
regard, and the regulations of the Secretary established in pursuance thereof.
26 U.S.C. § 7422(a) (emphasis added).
(a) In general.--If, in connection with any collection of Federal tax with respect
to a taxpayer, any officer or employee of the Internal Revenue Service recklessly
or intentionally, or by reason of negligence, disregards any provision of this title,
or any regulation promulgated under this title, such taxpayer may bring a civil
action for damages against the United States in a district court of the United
States. Except as provided in section 7432, such civil action shall be the exclusive
remedy for recovering damages resulting from such actions.
(d) Limitations.-(1) Requirement that administrative remedies be exhausted.--A judgment for
damages shall not be awarded under subsection (b) unless the court determines
that the plaintiff has exhausted the administrative remedies available to such
plaintiff within the Internal Revenue Service.
26 U.S.C. § 7433(a) and (d) (emphasis added) (subsection (b) sets limits on damage awards).
There are no allegations in the Complaint that Plaintiff has filed a claim for a refund with the IRS
or has exhausted the administrative remedies available to him within the IRS.
Plaintiff also asserts claims of “Theft Under State Law in Violation of the New Mexico
Constitution and NM Statutes.” Complaint at 15. Having dismissed all of Plaintiff’s federal law
claims, the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims.
See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has
original jurisdiction”).
Having dismissed all of Plaintiff’s federal law claims and declining to exercise
supplemental jurisdiction over Plaintiff’s state law claims, the Court will dismiss the Complaint
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without prejudice. Plaintiff may file an amended complaint within 14 days of entry of this
Order. Failure to timely file an amended complaint may result in dismissal of this case.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which shows this
Court has jurisdiction, states a claim, and includes the addresses of every defendant named in the
amended complaint.
IT IS ORDERED that:
(i)
Plaintiff’s Motion for Leave to Proceed on Appeal Without Prepayment of Costs
or Fees, Doc. 6, filed May 4, 2017, is GRANTED;
(ii)
Plaintiff’s Ex Parte Application for Injunctive Relief in Affidavit Form for an
Order for Agent Teresa Dominguez to Cease All Collection Activity and Sale of
Property Belonging to James Simones, Doc. 7, filed May 4, 2017, is DENIED;
and
(iii)
Plaintiff’s Complaint, Doc. 1, filed April 18, 2017 is DISMISSED without
prejudice. Plaintiff shall have 14 days from entry of this Order to file an
amended complaint.
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__________________________________
UNITED STATES DISTRICT JUDGE
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