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Reyes v. Department of the Treasury

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 24, 2009

JOAQUIN SERRANO REYES, PLAINTIFF,
v.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS SOME CLAIMS WITHOUT LEAVE TO AMEND, TO DEEM THE COMPLAINT AMENDED TO REFLECT SUBSTITUTION OF THE UNITED STATES AS THE DEFENDANT, AND TO DIRECT SERVICE ON DEFENDANT UNITED STATES OF AMERICA (DOC. 7)

Plaintiff is a prisoner who is proceeding pro se and in forma pauperis with an action for damages and other relief concerning alleged civil rights violations and tax refunds. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.

On April 14, 2009, the Magistrate Judge filed amended findings and recommendations concerning Plaintiff's complaint, filed on February 20, 2009, to the effect that 1) Plaintiff's claim pursuant to 42 U.S.C. § 1983 against all defendants be dismissed without leave to amend; 2) Plaintiff's claim pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) against the United States, the Internal Revenue Service, or any IRS employees, including but not limited to Jon Schwartz, Operations Manager; Kathleen M. Woekel, Department Manager; Virginia Araiza, employee and Appeals Officer; Rosalind C. Kochmanski, Field Director and Accounts Manager; Jeff Stetina, Director of Field Compliance Services; and Dorothy M. Baylis, Operations Manager, be dismissed without leave to amend; 3) The complaint be deemed amended to reflect substitution of the United States as the Defendant in this action upon proper service of process upon the United States; 4) Plaintiff's complaint be served on Defendant United States of America; and 5) Service be effected by Plaintiff, the Clerk, and the Marshal pursuant to the Court's specified directions.

The amended findings and recommendation were served on Plaintiff by mail on May 18, 2009, and Plaintiff was granted thirty days in which to file objections. Over thirty days have passed, but Plaintiff has not filed any objections.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the findings and recommendation are supported by the record and proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1) The amended findings and recommendations filed on April 14, 2009, are ADOPTED IN FULL; and

2) Plaintiff's claim pursuant to 42 U.S.C. § 1983 against all defendants IS DISMISSED WITHOUT LEAVE TO AMEND; and

3) Plaintiff's claim pursuant to Bivens v. Six Unknown Nmed Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) against the United States, the Internal Revenue Service, or any IRS employees, including but not limited to Jon Schwartz, Operations Manager; Kathleen M. Woekel, Department Manager; Virginia Araiza, employee and Appeals Officer; Rosalind C. Kochmanski, Field Director and Accounts Manager; Jeff Stetina, Director of Field Compliance Services; and Dorothy M. Baylis, Operations Manager, IS DISMISSED WITHOUT LEAVE TO AMEND; and

4) The complaint IS DEEMED AMENDED to reflect substitution of the United States as the Defendant in this action upon proper service of process upon the United States; and

5) Plaintiff's complaint SHALL BE SERVED on Defendant United States of America; and

6) Plaintiff, the Clerk, and the Marshal SHALL EFFECTUATE service as follows:

a) The Clerk of the Court shall send Plaintiff one USM-285 form, one summons, a Notice of Submission of Documents form, an instruction sheet, and a copy of the complaint filed on February 20, 2009;

b) Within THIRTY (30) DAYS from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:

1. One completed summons;

2. One completed USM-285 form for the Defendant listed above; and

3. Two copies of the endorsed complaint filed on February 20, 2009;

c) Plaintiff need not attempt service on defendants and need not request waiver of service; and

d) Upon receipt of the documents described above, the Clerk of the Court SHALL FORWARD them to the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs; and

e) Upon receipt of the documents from the Clerk of the Court, the United States Marshal shall:

1) Serve process and a copy of this order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure; and

2) Within ten days after service is effected, the United States Marshal shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required.

Plaintiff's failure to comply with this order will result in a recommendation to dismiss this action for failure to obey this Court's order. Local Rule 11-110.

IT IS SO ORDERED.

20090624

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