Banks v. New York State Department of Taxation & Finance

Filing 3

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; DISMISSING CASE AS FRIVOLOUS: As explained in the Memorandum and Order, Banks is granted leave to proceed in forma pauperis for purposes of this Order. The com plaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. A copy of this Order will be mailed to Banks. Ordered by Judge John Gleeson on 1/9/2012. (Gonen, Daniel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

MARIE L. BANKS,
Plaintiff,
- against -

MEMORANDUM AND ORDER
No. 11-CV-5212 (JG) (RER)

NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE,
Defendant.

JOHN GLEESON, United States District Judge:
Plaintiff Marie L. Banks filed this pro se action on October 25, 2011, seeking
damages and an order putting an end to what she refers to as “kidnapping for mass grave.”
Compl. ¶ IV. Banks has requested leave to proceed in forma pauperis. I grant her request to
proceed in forma pauperis solely for the purpose of this Order, and dismiss the complaint for the
reasons set forth below.
BACKGROUND
Banks’s claims appear to arise from a tax dispute with the New York State
Department of Taxation and Finance (the “NYSDTF”). However, the complaint also contains
repeated references to matters such as a “mass grave,” kidnapping, genocide, evidence planting,
assassination, robbery and rape.
It is difficult to understand the nature of Banks’s dispute with the NYSDTF. As
her “Statement of Claim,” she states:
Defendant fail to state collection procedure of TAX Isolation[.] Defendant
refused help to victim after his associates orchestrated assassination order
unsigned by the Judge in Washington[.] Defendant Give ultimatum & Robbed
payment.

Compl. ¶ III. Banks also claims that “the State refused access to their Building [and] [r]efused to
accept a Power of Attorney.” Id. p. 2. She also attaches a letter sent by the NYSDTF to her son
and claims that it “did not explain the collection procedure law” and “stole” a payment. Id.
DISCUSSION
A.

Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma

pauperis action where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” In Denton v. Hernandez, 504 U.S. 25 (1992), the Supreme Court
explained that
the in forma pauperis statute, unlike Rule 12(b)(6) [of the Federal
Rules of Civil Procedure] “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are
clearly baseless.”
Id. at 32 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “[A] finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts available to contradict them.” Id.
at 33.
A court must construe a pro se litigant’s pleadings liberally, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010),
especially when those pleadings allege civil rights violations, Sealed Plaintiff v. Sealed
Defendant #1, 537 F.3d 185, 191–93 (2d Cir. 2008). A pro se complaint should not be dismissed
without granting the plaintiff leave to amend “at least once when a liberal reading of the

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complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 795 (2d Cir. 1999) (internal quotation marks and citation omitted).
Although courts must read pro se complaints with “special solicitude,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal quotation marks and
citation omitted), and interpret them “to raise the strongest arguments that they suggest,” id. at
476 (internal quotation marks and citation omitted), the complaint must plead enough facts to
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While “‘detailed factual allegations’”
are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
Similarly, a complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
B.

Analysis
The bulk of the allegations in the complaint are frivolous. In particular, Banks’s

allegations regarding “mass graves,” evidence planting, kidnapping, genocide, assassinations and
rape appear irrational. See Denton, 504 U.S. at 33.
To the extent Banks is seeking to challenge an assessment of state taxes owed by
her or her son, her claims are barred by the Tax Injunction Act (the “TIA”), 28 U.S.C. § 1341. 1
1

It does not appear from the complaint that Banks would have standing to pursue claims on behalf
of her son. However, since the complaint refers to tax assessments and payments made by Banks in addition to her
son, I will assume, at this point, that she has standing.

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See Hibbs v. Winn, 542 U.S. 88, 104–05, 107 (2004); Joseph v. Hyman, 659 F.3d 215, 218 (2d
Cir. 2011); Macagna v. Town of E. Hampton, No. 09-CV-3064 (DRH) (ETB), 2010 WL
3257729, at *5 (E.D.N.Y. Aug. 16, 2010). Moreover, even if not embraced by the TIA, her
challenge to state tax procedures is barred by the doctrine of comity. See Levin v. Commerce
Energy, Inc., 130 S. Ct. 2323, 2330, 2332–33 (2010); Joseph, 659 F.3d at 218 (“Federal courts
generally abstain from cases that challenge state taxation schemes on the basis that those claims
are more appropriately resolved in state court.”); Macagna, 2010 WL 3257729, at *5–7.
Even if I were to reach the merits of Banks’s claim that the state “did not explain
the collection procedure law,” I would conclude that she has failed to state a claim. Due process
generally does not require a state to provide individualized notice of state-law procedures that
“are established by published, generally available state statutes and case law.” City of W. Covina
v. Perkins, 525 U.S. 234, 241 (1999); see also Brody v. Vill. of Port Chester, 434 F.3d 121, 132
(2d Cir. 2005). Banks has failed to allege why the notices provided by the NYSDTF were
inadequate.

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CONCLUSION
For the reasons above, the complaint is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). 2

So ordered.

John Gleeson, U.S.D.J.
Dated: January 9, 2012
Brooklyn, New York

2

Pro se complaints like the current one are frequently dismissed with leave to amend, which
provides the pro se plaintiff an opportunity to frame a coherent complaint that complies with the requirements of
Rule 8 of the Federal Rules of Civil Procedure. However, Ms. Banks’s lengthy litigation history in this Court,
which includes numerous dismissals with leave to amend, has proved the futility of granting such leave here. I have
no doubt that circumstances the Court lacks the authority to address preclude Ms. Banks from reframing the current
allegations into a viable cause of action.

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