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Uptergrove v. United States

April 17, 2009

GENE UPTERGROVE, CHARLES WAYNE UPTERGROVE, MARTHA PLAINTIFFS,
v.
UNITED STATES OF AMERICA, UNITED STATES ATTORNEY MCGREGOR W. SCOTT, JENNINGS, U.S. MARSHALS OFFICE, TRIAL ATTORNEY G. PATRICK MARILYN COLLINS, DOES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. 10-2)

I. INTRODUCTION

Plaintiffs Charles Wayne Uptergrove and Martha Gene Uptergrove (collectively "Plaintiffs"), appearing pro se, filed suit against the United States of America ("United States"), United States Attorney McGregor Scott ("Scott"), Trial Attorney G. Patrick Jennings with the Tax Division of the United States Department of Justice ("Jennings"), the United States Marshals Office ("U.S. Marshals"), Internal Revenue Service ("IRS") employee Marilyn Collins ("Collins"), and Does 1-100 (collectively "Defendants"). The complaint brought under 42 U.S.C. § 1983 alleges that Defendants violated Plaintiffs' Seventh Amendment rights. Plaintiffs seek no damages, but request "equitable relief and injunctive relief against defendants permanently restraining them from seizing and selling" their home. (Doc. 1, Compl. at p. 13.)

Before the court for decision is Defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The United States asserts that each defendant is entitled to immunity from suit. Plaintiffs have not filed an opposition with the court. Instead, Plaintiffs mailed a copy of their opposition to the Fresno IRS office, which forwarded the opposition to Defendants. Defendants attached Plaintiffs' opposition to their reply brief, filed April 3, 2009, as Exhibit "A." (Doc. 12.) Oral argument was heard on April 13, 2009; Plaintiffs did not appear.

II. BACKGROUND

Plaintiffs' claim arises from facts relating to two prior lawsuits. (Compl. ¶ 1.) The first lawsuit, In re Charles Uptergrove, DBA Urc Trucking, No. LA 88-14691-NRR, involving Plaintiff Charles Wayne Uptergrove ("Charles"), began as a Chapter 7 bankruptcy proceeding, but was later converted to a Chapter 11 bankruptcy proceeding. (Id.) In the second lawsuit, United States v. Uptergrove, No. 1:06-CV-01630-AWI-LJO (E.D. Cal. Sept. 24, 2008) ("Uptergrove I"), the United States sought to reduce Plaintiffs' federal tax liabilities to judgment and foreclose on real property owned by them. (Doc. 10-2 at 2.) Due to Plaintiffs' refusal to cooperate during discovery, the district court ordered sanctions and warned Plaintiffs that failure to comply with the order could result in a default judgment. (Id.) Plaintiffs did not comply with the order and a default judgment was subsequently entered, ordering the sale of real property to satisfy unpaid federal tax liabilities and unpaid sanctions. (Id.) Uptergrove I is currently on appeal to the Ninth Circuit. (Id.)

Plaintiffs allege here that in bringing Uptergrove I, Scott and Jennings "intentionally, knowingly, willfully, falsified factual allegations against [Plaintiff] Martha Uptergrove in which they falsely alleged that she was owner, operator, or employee, of a business called Ikon Roofing, and owed taxes from income relating to said business . . . ." (Compl. ¶ 2.) Plaintiffs allege that Martha Gene Uptergrove ("Martha") was not involved with Ikon Roofing, rather, she was employed by the Madera Water District. (Compl. ¶ 3.) Martha alleges that she was terminated from the Madera Water District due to the alleged unlawful levying from her paycheck by the IRS. (Id.) Martha does not seek damages for the alleged termination.

Plaintiffs further allege that IRS Agent Collins falsely represented that Martha was an owner of Ikon Roofing. (Compl. ¶¶ 4, 5.) Plaintiffs allege that Collins' false statement prompted the IRS to issue a wage levy order to Martha's employer, and the seizing of Charles's property. (Compl. ¶ 5.) Plaintiffs also allege that Defendant United States "intentionally omitted [and] excluded . . . evidence . . ." in Uptergrove I. (Compl. ¶ 10.)

III. STANDARD OF DECISION

A. Subject Matter Jurisdiction - Fed. R. Civ. Proc. 12(b)(1)

A court may only exercise subject matter jurisdiction in an action against the Federal Government where (1) a statutory authority vests the district court with subject matter jurisdiction; and (2) the United States has waived its sovereign immunity. See Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). "Absent consent to sue, dismissal of the action is required." Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982).

B. Failure to State a Claim - Fed. R. Civ. Proc. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails "to state a claim upon which relief can be granted." In deciding whether to grant a motion to dismiss, the court must "accept all factual allegations of the complaint as true and draw all reasonable inferences" in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). "To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Weber v. Dep't of Veterans Affairs, 521 F.3d 1061 (9th Cir. 2008) (citing Bell Atl. v. Twombly, 550 U.S. 544; 127 S.Ct. 1955 (2007) (rejecting interpretation of Rule 8 that permits dismissal only when the plaintiff can prove "no set of facts" in support of his claim). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Something "more than labels and conclusions" is needed to provide the grounds for relief. Bell Atl., 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). Matters of public record may be considered, including pleadings, orders, and other papers filed with the court of records of administrative bodies. See Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Allegations in the complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. Sprewell, 266 F.3d at 988. When ruling on a motion to dismiss, the court may consider facts alleged in the complaint, documents attached to the complaint when authenticity is not contested, and matters of which the court may take judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1988).

Pro se complaints are held to less stringent standards than formal pleadings by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A court must construe a pro se plaintiff's "inartful pleading" liberally in determining whether a claim has been stated, including pro se motions as well as complaints. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). This is especially true when a plaintiff appears pro se in a civil rights case. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). "Dismissal of a pro se complaint without leave to amend is proper only if ...


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