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Duran v. IRS

March 17, 2009

JOHN DURAN, PLAINTIFF,
v.
IRS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION

Plaintiff John Duran ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant action on February 25, 2009. For the reasons stated below, the Court recommends that Plaintiff's complaint be dismissed without leave to amend.

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Allegations

Plaintiff sues the Internal Revenue Service ("IRS'), IRS Commissioner Douglas H. Shulman, revenue officer Elizabeth Muniz, group manager Maryann Rose Encisco, settlement officer B. Prawl and United States Senator Dianne Feinstein for violations of the Fourth and Fifth Amendments to the United States Constitution, violation of his civil rights (42 U.S.C. § 1983) and Racketeer Influenced and Corrupt Organizations ("RICO") violations pursuant to 18 U.S.C. § 1961 et seq.

Plaintiff alleges that the IRS denied, blocked and deprived him of a Collections Due Process Hearing ("CDPH") following a notice of levy in violation of his constitutional right to due process. Plaintiff further alleges that the IRS Commissioner and IRS employees and associates unlawfully levied his earnings beginning in August or September 2008. Plaintiff claims that the defendants did not have a lawful court order to levy his earnings and he cites to statutory levy amounts.

Plaintiff seeks injunctive and declaratory relief, along with damages.

C. Analysis

1. Sovereign Immunity

Plaintiff appears to sue the federal Defendants in their individual and official capacities. Plaintiff, in part, identifies the individual defendants by their respective titles and submits exhibits identifying them in their official capacities. See Complaint and Exhibits C, D and E. Official capacity claims against individual defendants must be construed as claims against the entity by whom they are employed. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985) (suit against IRS employees in their official capacities "essentially a suit against the United States"; citation omitted).

Plaintiff may not assert federal civil rights claims against federal agencies. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1993). The United States has not waived sovereign immunity with respect to constitutional claims for damages. Rivera v. United States, 924 F.2d 948, 951 (9th Cir.1991); Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1207 (9th Cir.1988); see Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir.), cert. denied, ...


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