The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS COMPLAINT WITHOUT LEAVE TO AMEND
Plaintiff Dennis Chan Lai, appearing pro se and proceeding in forma pampers, filed a complaint on November 30, 2009. (Doc. 1.) Plaintiff named Internal Revenue Service ("IRS") employees Mrs. Ipson and Mr. M. Green as Defendants. In a subsequent pleading filed with the Court, Plaintiff sought to add the United States of America as a named Defendant. (See Doc. 5.)
Pursuant to Title 28 of the United States Code Section 1915(e)(2), the Court has reviewed the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if it 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). 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)).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
If the Court determines that the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the Plaintiff cannot prevail on the facts that he has alleged and that an opportunity to amend would be futile. Lopez, at 1128.
A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Id.
B. Plaintiff's Allegations
Plaintiff's complaint is nearly incomprehensible. It sprawls twenty-two pages and includes inapplicable case and statutory quotations.*fn1
Plaintiff seeks relief for "deliberate indifference" wherein Defendants purportedly discriminated against him in denying him the "President Bush stimulus package," by ignoring Title 26 of the United States Code section 6702 (b)(3), by apparently failing to carry forward a tax credit, and for illegal assessment of tax pursuant to Title 26 of the United States Code section 1346. (Doc. 1 at 1-2, ¶¶ 1-4.) Plaintiff provides a number of separate bases for this Court's jurisdiction. (Doc. 1 at 2-7, Parts A-H.) Under a heading entitled "Cause of Action," Plaintiff provides a nearly incoherent recitation involving numerous subheadings and sub-subheadings. (See Doc. 1 at 8-10.) This information is followed by a "Summary" section (Doc. 1 at 10) and "Facts" portion that includes twenty-seven paragraphs. (Doc. 1 at 10-17.)
Plaintiff asserts damages including "Deprivation of liberty interest," another unnamed deprivation of some kind, a number of "impediment[s]," a seizure of assets including "denial of due process" and lost income, an income below the poverty level due to his incarceration, deprivation of his First Amendment rights, a deprivation related to the costs assessed to those incarcerated where the supplies were previously-provided, negligence for unauthorized tax collection, negligence due to Defendants' failure to recognize his exempt status from the necessity of filing a return due to his incarceration, and the financial burden of a levy against his "personal and business property." (Doc. 1 at 17-19.)
Plaintiff seeks relief in the form of $75,000 in "ACTUAL" damages, apparently for Defendants' denial of an "80 to 200 thousand [dollar] carry-over tax credit," punitive damages in the sum of $10,000 "accumulating," $10,000 for the denial of the Bush stimulus package, and attorney fees and costs in the total sum of $6,000. (Doc. 1 at 20.) Finally, Plaintiff seeks summary judgment of his claim pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 1 at 21.)
Plaintiff's complaint does not amount to a series of short and plain statements showing he is entitled to relief. It is rambling and difficult to decipher. The Court also notes that the allegations lack chronological context for the facts asserted span a period of more than twenty years.*fn2 (See, e.g., Doc. 1 at 5 ["in 1985, IRS seized by illegal warrant"], at 6-7 ["in 1981"], 9 [references from 1982 through 2009], 10-13 [2008 references].)
This Court has liberally construed Plaintiff's complaint to assert causes of action for (1) a violation of Title 28 of the United States Code section 1983; (2) a violation of Title 26 of the United States Code section 6702; as well as (3) a due process violation. The Court now turns to address each cause of action in turn and related matters pertaining to Plaintiff's complaint as a whole.
Title 42 of the United States Code section 1983
To the degree Plaintiff is attempting to assert a claim pursuant to section 1983 of Title 42 of the United States Code, the Civil Rights Act provides as follows:
Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Thus, to state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). There is no allegation in the complaint before the Court that any Defendant was acting under color of state law. Further, there are no facts that would support an inference of action under color of state law.
Moreover, it is established that section 1983 provides no claim against federal officers acting under color of federal law. Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995).
Plaintiff has failed to state a claim upon which relief may be granted. Additionally, amendment would be futile and, therefore, it will be recommended the allegation be dismissed without leave to amend.
Title 26 United States Code Section 6702
Plaintiff references section 6702 throughout his complaint. That section ...