Johnson v. United States

Filing 29

OPINION and ORDER adopting 26 the Report and Recommendation; granting 19 Defendant's Motion to Dismiss for Failure to State a Claim; denying 22 Plaintiff's Motion to Amend. Signed by Judge Michael H. Watson on 10/18/17. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Roger Carlton Johnson,
Plaintiff,
V.

Case No. 2:16-cv-1064

United States,

Judge Michaei H. Watson

Defendant.

Magistrate Judge Joison

OPINION AND ORDER

On September 25,2017, Magistrate Judge Joison, to whom this case was

referred, Issued a Report and Recommendation {"R&R") recommending the
Court grant the United States of America's ("Defendant") motion to dismiss, EOF
No. 19, and deny Roger Carlton Johnson's ("Plaintiff) motion to amend, ECF No.
22, In this pro se tax case.

Plaintiffs complaint sues only Defendant. It alleges that Plaintiff Is a
citizen of Ohio and that Defendant Is violating the United States "Constitution,

Acts of Congress and U.S. Supreme Court holdings"^ by taxing Plaintiffs pension
fund because the pension fund does not produce "Income" for purposes of
assessing federal Income taxes.

^Among the statutes Plaintiff alleges Defendant violated are the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, etseq., and the Hobbs Act,
18U.S.C.§1951.

After Defendant moved to dismiss PiaintifTs complaint, Plaintiff moved to

amend the same. Mot., ECF No. 22. The amended complaint seeks to add

Steven Mnuchin (United States Secretary of the Treasury), John Koskinen

(Commissioner of the Internal Revenue Service ("IRS")), and unnamed John Doe
IRS agents as defendants ("Proposed Defendants") and seeks to remove the
United States of America as a defendant. Am. Compl., ECF No. 22-1. It further

seeks to add claims against Proposed Defendants under 42 U.S.C. § 1983. Id.
With respect to Defendant's motion to dismiss, the R&R concluded that
Defendant is entitled to Sovereign Immunity on Plaintiffs request for money

damages and that Plaintiffs requested relief was otherwise barred. R&R 2, ECF
No. 26. Specifically, the R&R noted that neither RICO nor the Hobbs Act
contains an express waiver of sovereign immunity and that every court to have
considered the issue with respect to these statutes has found no waiver. Id. at 3

(quoting and citing cases). Further, the R&R concluded that the Anti-Injunction
Act bars Plaintiffs request for a release of the liens and levies against him. Id.
Finally, the R&R noted that Plaintiff cited in his complaint severai statutes that
include waivers of sovereign immunity but explained that Plaintiff was ineiigible to

bring suit under any of those statutes. Id. at 4 (explaining why Plaintiff was

ineligible to bring suit under 26 U.S.C. §§ 7426, 7432, or 7433).
The R&R also recommended denying Plaintiffs motion to amend as futile.
Specifically, it expiained that Proposed Defendants are all federal agents and

that Plaintiff cannot bring § 1983 ciaims against those who act under color of
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federal law rather than state law. R&R 5, ECF No. 26. Further, it concluded that

Plaintiffs prayers for injunctive relief against Proposed Defendants fail under the
Anti-Injunction Act for the reason they failed against Defendant. Id. at 6. Finally,
the R&R concluded that Plaintiffs proposed substitution of defendants was futile

in any event because the amended complaint's official-capacity claims against
Proposed Defendants would be construed as claims against the United States of
America and would therefore fall for the reasons addressed in conjunction with
Defendant's motion to dismiss. Id.

Plaintiff timely objected to the R&R.

Magistrate Judge Jolson issued the R&R pursuant to Federal Rule of Civil

Procedure 72(b). Under that rule, the Undersigned must determine de novo any
part of the Magistrate Judge's disposition that has been properly objected to.

Fed. R. Civ. P. 72(b)(3). The undersigned may accept, reject, or modify the
R&R, receive further evidence, or return the matter to the Magistrate Judge with
instructions. Id. The Court considers each of Plaintiffs objections.

First, Plaintiff objects that the R&R's statement, "[t]he thrust of [Plaintiffs]
Complaint is that he is not subject to the federal income tax," R&R 1, is a
mischaracterization of Plaintiffs claim. Obj. 1, ECF No. 26. Plaintiff argues that

he does not claim that he is not subject to the federal income tax but rather that
he does not owe any federal income tax because he has never received federal
income.

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This statement in the R&R is not an incorrect characterization of the thrust

of Piaintiffs Compiaint. In any event, it does not affect any of the legal
conclusions contained in the R&R, and, as such. Plaintiffs first objection is
overruled as moot.

Plaintiffs second and third objections are identical. In them. Plaintiff
objects to the R&R's conciusion regarding sovereign immunity. He contends that
§ 1983 waives any immunity for claims brought pursuant to RiCO or the Hobbs
Act and overcomes the Anti-Injunction Act.

These objections are not well taken. First, 42 U.S.C. § 1983 applies to
persons who act under color of state law, not federal law, and Plaintiffs proposed

amended complaint is therefore futile as it attempts to bring claims against

federal actors.^ 42 U.S.C. § 1983 ("Every person who, under color of any statute
... of any State or Territory or the Districtof Columbia ....") (emphasis added);

see also Searcy v. Cityof Dayton, 38 F.3d 282, 286 (6th Cir. 1994) ("To prove a
claim under 42 U.S.C. §1983, a plaintiff must establish: (1) that he was deprived

of a right secured by the Constitution or laws of the United States, and (2) that he
was subjected to or caused to be subjected to this deprivation by a person acting
under color of state law." (citation omitted)) (emphasis added). Moreover,
contrary to Plaintiffs contention, § 1983 does not waive the federal government's

^For thesame reason. Plaintiffs fifth objection, which statessimply that "Plaintiffs
Amended Complaint clearly sets forth the illegal acts of Defendants and can withstand a
Rule 12 motion to dismiss," Obj. 2, EOF No. 27, and sixth objection, which contends
that § 1983 applies to those who act under color of federal law, id. at 3, both fail.

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sovereign immunity for any of the statutes invoked in Plaintiffs original
Complaint.

Fourth, Plaintiff objects to the R&R*s conclusion that Plaintiff did not

exhaust his administrative remedies with respect to any claims brought under 26

U.S.C. §§ 7432, 7433. He argues that "[f]or years Plaintiff has been objecting to
Defendants [sic] actions for taking his money for federal taxes that he does not
owe." Obj. 2, EOF No. 27. He states that he has filed claims, mailed letters to

Defendant, and has asked for a collection due process hearing. Id.
This objection lacks merit as well. The R&R properly concluded that
Plaintiffs Complaint does not allege that he satisfied the administrative

prerequisites to bringing suit under 26 U.S.C. §§ 7432 or 7433.

For the reasons addressed above, each of Plaintiffs objections is
meritless. Accordingly, the same are OVERRULED. The Court ADOPTS the

R&R, DENIES Plaintiffs motion to amend, ECF No. 22, GRANTS Defendant's

motion to dismiss, ECF No. 19, and DISMISSES the case for lack ofjurisdiction.
IT IS SO ORDERED.

kujLjj.lAJa^

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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