Mullins et al v. Internal Revenue Service

Filing 6

ORDER - Plaintiffs shall properly complete and submit to the Clerk of Court the forms necessary to effect service of summons; and the Clerk of Court is directed to deliver Plaintiffs' completed service forms to the U.S. Marshal, who shall forthwith issue service. Signed by Chief Magistrate Judge Sharon L. Ovington on 4-24-15. (mcm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES R. MULLINS, et al.,
Plaintiffs,

:
:

Case No. 3:15cv00106

vs.

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

THE INTERNAL REVENUE
SERVICE,

:
:

Defendant.

ORDER

Plaintiffs James R. Mullins and Kathleen L. Mullins, residents of Eaton, Ohio,
bring this case pro se concerning the Internal Revenue Service’s disallowance of certain
claims for dependent children in tax year 2006. Plaintiffs previously challenged that
disallowance in ways they describe in their Complaint. Although their challenges have so
far been unsuccessful, they received a letter from the IRS on or about April 18, 2014
informing them, “You may pursue this matter further by filing suit in either the United
States District Court or the United States Court of Claims. If you decide to do this, you
must file the suit within two years from the date on the letter denying your claim, which
the Austin IRS Campus mailed to you on April 23, 2013....” (Doc. #5, PageID at 33). On
March 25, 2015, Plaintiffs initiated this case by filing their Motion To Proceed In Forma
Pauperis together with their Complaint.

The Court previously granted Plaintiff’s Application to Proceed in forma pauperis
under 28 U.S.C. §1915. The case is presently before the Court for a sua sponte review to
determine whether Plaintiff’s Complaint, or any portion of it, should be dismissed
because it is frivolous, malicious, or fails to state a claim upon which relief may be
granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). If the Complaint raises a claim with
an arguable or rational basis in fact or law, it is neither frivolous nor malicious, and it may
not be dismissed sua sponte. Brand v. Motley, 526 F.3d 921, 923-24 (6th Cir. 2008); see
Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable
factual basis when its allegations are “fantastic or delusional.” Brand, 526 F.3d at 923
(quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989)); see Lawler, 898 F.2d at 1199. A Complaint has no arguable legal basis when it
presents “indisputably meritless” legal theories – for example, when the defendant is
immune from suit or when the plaintiff claims a violation of a legal interest which clearly
does not exist. See Neitzke, 490 U.S. at 327-28; see also Brand, 526 F.3d at 923. The
main issue thus presented by a sua sponte review at this early stage of the case is
“whether [the] complaint makes an arguable legal claim and is based on rational facts.”
Brand, 526 F.3d at 923-24 (citing Lawler, 898 F.2d at 1198).
Plaintiffs’ factual allegations are not fantastic or delusional. See Jones v.
Schmaker, 1999 WL 1252870 at * 1 (6th Cir. 1999) (“Examples of claims lacking rational
facts include a prisoner’s assertion that Robin Hood and his Merry Men deprived

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prisoners any access to legal texts.” (citing Lawler v. Marshall, 898 F.2d 1196, 1198-99
(6th Cir. 1990)); cf. Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (Souter, J., dissenting)
(courts need not accept as true “allegations that are sufficiently fantastic to deny reality as
we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or
experiences in time travel.”). Accepting Plaintiffs’ factual allegations as true and
liberally construing their pro se Complaint in their favor, the Complaint does not rest on
indisputably meritless theories or allege a violation of a non-existent right. Absent
circumstances that are not readily apparent on the face of the Complaint, this Court
generally has original jurisdiction over civil actions “for the recovery of any internalrevenue tax alleged to have been erroneously or illegally assessed or collected, or any
penalty claimed to have been collected without authority ....” 28 U.S.C. §1346(A)(1).
Consequently, Plaintiff’s Complaint is not subject to sua sponte dismissal.
Yet, Plaintiffs have not completed all the forms needed to effectively serve
Defendant with Summons. See Fed. R. Civ. P. 4(i). Plaintiffs are placed on NOTICE
that if they do not effect service of summons on Defendant as Rule 4(i) of the Federal
Rules of Civil Procedure requires, their Complaint will be subject to dismissal. In the
event Plaintiffs have questions about the forms they must complete to effect service on
Defendant, they may obtain assistance from personnel in the Office of the Clerk of Court.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiffs shall properly complete and submit to the Clerk of Court the
forms necessary to effect service of summons; and
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2.

The Clerk of Court is directed to deliver Plaintiffs’ completed service forms
to the U.S. Marshal, who shall forthwith issue service.

April 24, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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