under this section or to suggest facts which indicate that an amendment could cure this deficiency, the Court hereby GRANTS defendants' motions to dismiss plaintiff's peonage and Thirteenth Amendment claims.
4. Criminal Claims
Plaintiff seeks criminal indictments of defendants under 18 U.S.C. §§ 2, 4, 241, 242, 2112, 872, 1001, 1621, 1622, 1963, 1964, 3623, and 1581. Civil causes of action, however, do not generally lie under the criminal statutes contained in Title 18 of the United States Code. These five sections are not exceptions. See 18 U.S.C. §§ 4, 241, 242, 872, 1621, 1622; see also Bryant v. Donnell, 239 F. Supp. 681 (W.D. Tenn. 1965) (holding that § 241 does not create a civil cause of action); Brzozowski v. Randall, 281 F. Supp. 306 (E.D. Pa. 1968) (§ 242 may not be used as the basis for a civil action). Plaintiff has cited no authority, and the Court knows of none, holding that a plaintiff can bring civil causes of action under any of these statutes. As such, defendants' motions to dismiss these criminal claims are GRANTED.
C. Subject Matter Jurisdiction
1. Governing Law
Under Rule 12(b)(1), a defendant may seek to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). Federal subject matter jurisdiction must have a statutory basis. The primary sources of federal subject matter jurisdiction are federal question jurisdiction, 28 U.S.C. § 1331, diversity jurisdiction, 28 U.S.C § 1332, and supplemental jurisdiction, 28 U.S.C. § 1367.
Under Rule 12(b)(1), the party invoking the federal jurisdiction, the plaintiff, has the burden of showing that jurisdiction is proper. Thornhill Publishing Co. v. General Tel. & Electronics Corp., 594 F.2d 730 (9th Cir. 1979); see also Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). Unlike motions governed by Rule 12(b)(6), no presumptive truthfulness attaches to plaintiff's allegations when a court considers the merits of jurisdiction. Mortensen v. First Fed. Savings & Loan Ass'n, 549 F.2d 884 (3rd Cir. 1977).
2. Claims for Refund of Taxes/Return of Property
The crux of plaintiff's complaint is that he did not owe a debt to the United States because he did not owe taxes. He alleges that his property
was taken improperly because he did not owe the debt which it was taken to satisfy. His suit for damages is therefore akin to a suit for a refund of taxes or a declaration that the collection of taxes is unconstitutional.
The United States, as a sovereign entity, is immune from suit except when it consents to be sued. United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990); United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980). It is the plaintiff's burden to establish the jurisdiction of the court, and thus, plaintiff must show a waiver of sovereign immunity. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188, 80 L. Ed. 1135, 56 S. Ct. 780 (1936).
Plaintiff fails to show that the United States has waived immunity from suit here. Section 7422(a) of the Internal Revenue Code provides that "no suit or proceeding can be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected ...until a claim for refund or credit has been duly filed with the Secretary." 26 U.S.C. § 7422(a). Furthermore, in order for a district court to have jurisdiction over a suit for the refund of taxes, the taxpayer must first have paid the assessment, or a divisible portion thereof, for which relief is sought. See 26 U.S.C. §§ 7422(a), 6352(a); Thomas v. United States, 755 F.2d 728, 729 (9th Cir. 1985); Flora v. United States, 362 U.S. 145, 4 L. Ed. 2d 623, 80 S. Ct. 630 (1960).
The filing requirements of the Internal Revenue Code serve to give the IRS adequate notice of the claim and its underlying facts so that the IRS can make an administrative investigation and determination regarding the claim. Boyd v. U.S., 762 F.2d 1369, 1371 (9th Cir. 1985). Filing an administrative refund claim pursuant to the Internal Revenue Code and its implementing regulations is a jurisdictional prerequisite to bringing a refund suit in district court. Boyd, 762 F.2d at 1371; Huff v. United States, 10 F.3d 1440 (9th Cir. 1993), cert. denied 512 U.S. 1219, 129 L. Ed. 2d 834, 114 S. Ct. 2706 (1994).
Plaintiff has not named the United States as a defendant. Nor has plaintiff alleged that he has filed a proper administrative claim for refund with the IRS or that he has paid the full amount of the taxes assessed. Because the Internal Revenue Code's jurisdictional prerequisites have not been satisfied, this Court lacks subject matter jurisdiction over plaintiff's claim for a refund of tax monies collected by defendants through lien and garnishment procedures.
Moreover, the IRS's lawful collection of taxes does not violate a person's Fifth Amendment right to due process because the post-seizure remedies available to the taxpayer are adequate to protect the taxpayer's due process rights. Wages v. United States, 915 F.2d 1230, 1235 (9th Cir. 1990). In fact, the Ninth Circuit noted that "we have never recognized a constitutional violation arising from the collection of taxes." Id. Due process challenges to tax levies have been specifically rejected by the Supreme Court. Fuentes v. Shevin, 407 U.S. 67, 90-92, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Phillips v. Commissioner, 283 U.S. 589, 595-97, 75 L. Ed. 1289, 51 S. Ct. 608 (1931) (when internal revenue is at stake, property rights must yield provisionally to government need); see also Rodriguez v. United States, 629 F. Supp. 333, 347 (N.D. Ill. 1986) (IRS can seize property first and allow judicial determination later; post-deprivation remedy provides all the due process that the constitution requires). For these reasons, plaintiff cannot maintain an action against the United States for the IRS's collection of taxes or levying on his property to collect past taxes.
Plaintiff also seeks to hold Metzger liable for honoring the IRS levy. The statute, however, requires Metzger to honor this levy. "Any person in possession of ... property or rights to property subject to levy upon which levy has been made shall, upon demand of the Secretary, surrender such property or rights to the Secretary[.]" 26 U.S.C. § 6332(a). Moreover, section 6332(e) provides that if a person honors the levy, he is "discharged from any obligations or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment." 26 U.S.C. § 6332(e). For this reason, plaintiff cannot state a claim against Metzger.
The defendants' motions to dismiss for lack of subject matter jurisdiction are GRANTED.
3. Declaratory Relief Claims
Declaratory relief with respect to federal taxes is barred by 28 U.S.C. § 2201. Section 2201(a) states in relevant part:
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration....