Lock v. United States of America

Filing 5

Opinion and Order: plaintiffs motion to proceed in forma pauperis 2 is GRANTED, and plaintiffs complaint 1 , is DISMISSED with leave to amend. Plaintiff is allowed 30 days from the date of this order to file an amended complaint curing the deficiencies identified above. Amended Complaint is due 5/29/2014. Signed on 4/29/2014 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENNIS LOCK,
Plaintiff,

Civ. No. 6:14-cv-00644-MC

v.

OPINION AND ORDER

UNITED STATES,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff, pro se, brings this motion to proceed in forma pauperis, ECF No. 2, and an
action against the United States. Plaintiff’s complaint, ECF No. 1, asserts at least two causes of
action, including: (1) a First Amendment claim and (2) a claim for Treason. 1
This Court may dismiss a claim sua sponte under FRCP 12(b)(6) for failure to state a
claim upon which relief can be granted. Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th
Cir. 1987) (citations omitted). Likewise, if a plaintiff proceeds in forma pauperis, this Court is
required to dismiss “the case at any time if the court determines that” the action or appeal is
“frivolous or malicious” or “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B). Upon review, plaintiff’s motion to proceed in forma pauperis, ECF No. 2, is
GRANTED, and plaintiff’s complaint, ECF No. 1, is DISMISSED with leave to amend.
STANDARD OF REVIEW

1

Plaintiff’s complaint caption includes: Unconstitutional Law (Ruling); First Amendment; Jurisdiction; Violates
Federal Rules of Evidence Concerning the Use of Words and Phrases; and Treason. Pl.’s Compl. 1, ECF No. 1.

1 – OPINION AND ORDER

“In civil rights cases where the plaintiff appears pro se, [this Court] must construe the
pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A.
Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citations omitted). This Court must give a pro
se litigant “leave to amend his or her complaint unless it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.” Id. (citations and internal quotation marks
omitted). “Moreover, before dismissing a pro se civil rights complaint for failure to state a claim,
[this Court] must give the plaintiff a statement of the complaint’s deficiencies.” Id.
DISCUSSION
Per complaint, ECF No. 1, plaintiff seeks to “secure tax exemption from the [Internal
Revenue Service (IRS)] for a small Church” founded by plaintiff. This Court will assess the
adequacy of plaintiff’s complaint.
Plaintiff asserts at least two causes of action, including: (1) a First Amendment claim and
(2) a claim for Treason. This Court, in Lock v. California, Civ. No. 6:13-cv-2091-MC, 2014 WL
116435, *2 (D. Or. Jan. 6, 2014), previously explained to plaintiff that Misprision of treason, 18
U.S.C. § 2382, “is a criminal statute that does not provide plaintiff with a private cause of
action.”
As to plaintiff’s remaining claim(s) under the First Amendment, this Court will assess the
sufficiency of plaintiff’s allegations. To survive this assessment under FRCP 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B), plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under this
standard, plaintiff’s alleged facts must constitute “more than a sheer possibility that a defendant
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This Court must assume that the
allegations contained in the complaint are true. Id.
2 – OPINION AND ORDER

Turning to plaintiff’s complaint, his principle concern appears to be that the IRS did not
grant plaintiff’s Church a 26 U.S.C. § 501(c)(3) 2 tax exemption and more broadly, that the IRS
violated his rights under the First Amendment.
As to the tax exemption denial, the IRS is empowered to deny exemption “under section
502 [and] 503.” Under 26 U.S.C. § 502(a), “[a]n organization operated for the primary purpose
of carrying on a trade or business for profit shall not be exempt . . . .” Likewise, 26 U.S.C. § 503
excludes certain qualifying entities (e.g., a trust) that engage in prohibited transactions.
Plaintiff’s Church, not plaintiff himself, may challenge his Church’s 26 U.S.C. § 501(c)(3) denial
under 26 U.S.C. § 7428. 3 However, even had plaintiff’s Church brought this claim, this Court
still “is not a proper forum for a section 7428 action, because that section authorizes only three
specific federal courts to entertain such actions: the Tax Court, the Court of Claims, and the
District of Columbia.” Church of the New Testament, 783 F.2d at 773. Thus, this Court lacks
subject matter jurisdiction over plaintiff’s allegations relating to his Church’s 26 U.S.C. §
501(c)(3) exemption denial.
As to plaintiff’s remaining First Amendment claim, he does not specify whether (or if) he
seeks relief under either the Free Exercise Clause or the Establishment Clause. Rather, plaintiff
focuses on his Church’s denied exemption status and his concerns about the appellate
proceedings afforded in California. See Pl.’s Compl. 1, ECF No. 1. To the extent that plaintiff’s
allegations are limited to the 26 U.S.C. § 501(c)(3) denial itself, these allegations are insufficient
2

A 26 U.S.C. § 501(c)(3) organization includes:
Corporations, and any community chest, fund, or foundation, organized and operated exclusively for
religious, charitable, scientific, testing for public safety . . . .

3

Importantly, plaintiff is not a proper petitioner “in a section 7428 action, because a section 7428 pleading may be
filed ‘only by the organization the qualification or classification of which is at issue.’” Church of the New
Testament, 783 F.2d 771, 773 (9th Cir. 1986) (citing 26 U.S.C. § 7428(b)(1)).

3 – OPINION AND ORDER

to “nudge[] [his] claims across the line” to plausible. Twombly, 550 U.S. at 570. 4 Looking
forward, plaintiff’s amended complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FRCP 8(a)(2). As indicated above, plaintiff is not
entitled to relief in this Court merely because his Church was denied a 26 U.S.C. § 501(c)(3)
exemption. Instead, “[w]here the claim is invidious discrimination in contravention of the First . .
. Amendment,” plaintiff “must plead sufficient factual matter to show that [the defendant]
adopted and implemented the [violative] policies at issue not for a neutral . . . reason but for the
purpose of discriminating on account of . . . religion . . . .” Iqbal, 556 U.S. at 667 (citations
omitted). Accordingly, plaintiff’s complaint is DISMISSED with leave to amend. See, e.g.,
Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).
CONCLUSION
For these reasons, plaintiff’s motion to proceed in forma pauperis, ECF No. 2, is
GRANTED, and plaintiff’s complaint, ECF No. 1, is DISMISSED with leave to amend. Plaintiff
is allowed 30 days from the date of this order to file an amended complaint curing the
deficiencies identified above.

IT IS SO ORDERED.

DATED this 29th day of April, 2014.

__________s/Michael J. McShane____________
Michael J. McShane
United States District Judge
4

“As long as exemptions are denied . . . on a nondiscriminatory basis using specific and reasonable guidelines and
without inquiry into the merits of the particular religious doctrines, the withholding of religious exemptions is
permissible under the Constitution.” Living Faith v. Comm’r of Internal Revenue, 950 F.2d 365, 376 (7th Cir. 1991)
(citations and quotation marks omitted).

4 – OPINION AND ORDER