The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S "NOTICE OF INSTANT MOTION FOR IMMEDIATE RELIEF" WITHOUT PREJUDICE (Doc. 5)
On February 25, 2009, Plaintiff John Duran, proceeding in pro per, who refers to himself as "Aggrieved Party," filed a "Petition, Claim and Complaint Under Authority of 18 U.S.C. Section 1964(a) - Rackerteering [sic], Fourth and Fifth Amendments United States Constitution Denial of a Due Process of Law, Unlawful Confiscation of Property, Federally Protected Rights 42 USC 1983, For Injunctive and Declaratory Relief and Other Damages as the Court Shall Determine Reasonable, Lawful and Just." Defendants are the Internal Revenue Service, alleged by Plaintiff to be an "informal organization,", IRS Commissioner Douglas H. Shulman, IRS Revenue Officer Elizabeth Muniz, IRS Group Manager Maryann Rose Enciso, IRS Settlement Officer B. Prawl, and United States Senator Dianne Feinstein." The Complaint alleges:
Aggrieved Party in this action John Duran a law abiding citizen has exhausted every effort in attempting to resolve the unlawful collections practices committed by all Defendant [sic] mentioned in this matter. This complaint does not challenge the validity of the federal income tax. This complaint is solely directed at the numerous criminal violations of federal law committed by the defendants denying, blocking and depriving Aggrieved Party a 'Due Process' in violation of the Internal Revenue Code. The code provides for a Collections Due Process hearing and a Collection Due Process Appeal both of which the IRS has deprived Aggrieved Party with [sic]. Aggrieved Party made modest payments toward tax balances while awaiting pertinent information requested from the IRS in order to steer larger payments toward the correct balances allegedly owed by Aggrieved Party. The IRS never objected or demanded larger payments from Aggrieved Party while failing to disclose any information to Aggrieved Party. Payments made to the IRS were requested to be channeled to certain years in order that the smallest balances could be paid in full. The IRS Commissioner, IRS employees and associates commenced unlawfully levying Aggrieved Partys' [sic] earnings commencing on or about August or September of 2008 in violation of Title 26 ... that a Notice of Levy must be accompanied by an 'attachment' of levy court order, which subsequently violated USC 18, Section 1341
'Fraud,' 26 USC 3432 by refusing, depriving and denying to relax or release a levy which has reduced Aggrieved Party and his dependent spouse to poverty further violating 26 USC 6331 and 26 USC 6334 Title 26 statutes. In short 6331(h)(1) and (2)(B) provide a maximum limitation of 15% on levies against wages, salary and other income, which states 'continuous levy shall attach to up to 15% of any specified payment due to the taxpayer.'
The absents [sic] of any lawful Court Orders in dealing with any Notices to Levy to any institution or employer is considered a criminal act of United States Mail Fraud. Undeniably, absent [sic] of any lawful Court Order, the defendants have used the Department of the Treasury for purposes of fraud and extortion.
The Complaint prays for the following relief:
The cause of justice and proper application of law justly requires this court's Order enjoining the Internal Revenue Service from any further collection activity until all claims are fully resolved and return of all sums wrongly collected. The IRS shall be ordered to pay for damages inflicted upon Aggrieved Party and his family as a result to [sic] the IRS Commissioner, employees and associates caused as a result of the unlawful confiscation of Aggrieved party means of living.
On March 11, 2009, Plaintiff filed a "Notice of Instant Motion for Immediate Relief and Motion":
Aggrieved Party is requesting that the court take immediate action in relaxing and stopping any further collections practices by the opposition in regards to this matter until the court is given the opportunity to review the collection practices that have driven the Aggrieved Party into a financial 'hardship.' Aggrieved Party is having difficulty paying utility bills and is unable to enter into a home modification program due to the unlawful confication [sic] of monies the Internal Revenue Service has engaged in.
Because the IRS has levied more than 15% in violation of IRC/Regulations the Aggrieved Party cannot indicate in the modification program that he has the ability to make his home payments. On March 1, 2008 the IRS levied $2500.00 from Aggrieved Partys' [sic] earnings. Aggrieved Party was left with only $330.00 to live on.
The IRS is now engaging in retaliation to further place Aggrieved Party in the state of poverty. On February 19, 2009, Elizabeth Muniz, IRS representative demand [sic] that Aggrieved Party provide his Form 1040 for his 2008 taxable year. The 2008 tax year requirement are [sic] not due until April 15, 2009. Muniz is acting with malice and with intent to inflict emotional distress thus damaging Aggrieved Party. Muniz and all other associates named in this action have violated Aggrieved Partys' Constitutional 'Rights' and should be subject to criminal action. A person who takes, confiscates, deprives, steals or robs a citizens [sic] of his property with [sic] a lawful Court Order has committed a crime.
WHEREFOR AGGRIEVED PARTY PRAYS that the court issue an [sic] Lawful Order to seize [sic] any collections and order to IRS to return unlawfully confiscated monies until 'Due Process' has been established.
There is no indication on the docket or in Plaintiff's motion that he has affected service of summons and the Complaint on Defendants as required by Rule 4, Federal Rules of Civil Procedure. The Court will not consider the relief requested by Plaintiff's motion in the absence of proof of service of summons and complaint in compliance with Rule 4 and will not consider such relief in the absence of actual notice of Plaintiff's request pursuant to Rule 65-231(a), Local Rules of Practice.*fn1 Further, the Anti-Injunction Act, 26 U.S.C. § 7421(a), provides: Except as provided in sections 6015(e), 6212(a) and (c), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any ...