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Malinowski v. None

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 19, 2009

KENNETH JOHN MALINOWSKI, PLAINTIFF,
v.
[NONE], DEFENDANT.

ORDER

On March 6, 2009, plaintiff filed this matter as a "Miscellaneous case," and paid the $39 filing fee for such actions.*fn1 The initially filed document requested the opening of "a Misc. case file under Article III Section I, for the purpose of setting up an evidence file for a pending case." Dckt. No. 1.

Thereafter, plaintiff filed several documents reflecting plaintiff's dispute with the Internal Revenue Service. See Dckt. Nos. 2-33. Among these documents is a "Default Notice," which, inter alia, seeks entry of default against Internal Revenue Service Commissioner C. Douglas Schulman, and IRS officer Ed Sabrack.*fn2 Plaintiff asserts that this court should enter default against these defendants because they did not timely respond to plaintiff's Request for Notice and Demand for Verified Assessment, sent to defendants on March 7, 2009. See Dckt. No. 23, at pp. 3-5. More fundamentally, plaintiff challenges a February 6, 2009 "Notice of Federal Tax Lien Filing," addressed to the "Boaz Foundation" as the "nominee or alter-ego for Kenneth J and Patricia I Malinowski." Id. at pp. 8-13. The liens encumber real property that appears to be plaintiff's residence, and show an unpaid assessment in excess of one million dollars.

This action fails to meet the criteria for a "Miscellaneous case" warranting the reduced filing fee. A "'Miscellaneous Case/Action' is a number assigned to an ancillary or supplementary proceeding not defined as a civil or criminal action." See E. D. Cal. L. R. ("Local Rule") 1-101 (Definitions). In general, miscellaneous actions are used to resolve an administrative matter related to another, regularly filed, action, e.g., registration of a judgment from another district court for enforcement purposes. In contrast, the instant action presents a direct challenge to decisions reached by the Internal Revenue Service, and must proceed, if at all, as a regular civil action pursuant to a proper complaint and payment of the full filing fee.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff may, within ten (10) days of the filing date of this order:

a. File a complaint that conforms with the format and content requirements of the local and federal rules of court, and

b. Pay the full filing fee for initiating a civil action ($350 minus his previous filing fee of $39), or

c. Withdraw the present action.

2. Should plaintiff fail to timely file a proper complaint and pay the full filing fee, the Clerk of Court will be directed to close this case.

SO ORDERED.


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