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Shannon v. United States

United States District Court, E.D. California

June 29, 2016

MARLA D. SHANNON, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS WITHOUT LEAVE TO AMEND (ECF No. 1) THIRTY DAY DEADLINE

         Marla Shannon and Guy Shannon (“Plaintiffs”), proceeding pro se and in forma pauperis, filed this action pursuant to 28 U.S.C. § 1361, 26 U.S.C. §§ 7214 and 7433, and 18 U.S.C. § 872 on May 6, 2016. On May 11, 2016, the Court ordered Plaintiffs to file long form in forma pauperis applications or pay the filing fee. (ECF No. 4.) On May 27, 2016, Plaintiffs filed long form applications to proceed in forma pauperis. (ECF Nos. 5, 6.) On June 1, 2016, the Court granted Plaintiffs' motions to proceed in forma pauperis. (ECF No. 7.)

         I.

         SCREENING REQUIREMENT

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court must dismiss a case if at any time the Court determines that the complaint fails to state a claim upon which relief may be granted. In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). 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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678.

         II.

         DISCUSSION

         Plaintiffs bring this action for alleged violations related to the collection of income tax from Plaintiff Marla Shannon by the Internal Revenue Service (“IRS”). Plaintiffs filed the complaint under 26 U.S.C. §§ 7433 and 7214, 28 U.S.C. § 1361, and 18 U.S.C. § 872. Plaintiffs seek both monetary and non-monetary relief in the complaint.

         A. Criminal Prosecution

         Plaintiffs argue that IRS Settlement Officer Sylvia Perez made an unlawfully extortionate demand that Plaintiff Marla Shannon provide irrelevant financial information in order to receive a face-to-face CDP hearing. Plaintiffs attempt to bring a claim under 18 U.S.C. § 872, which states:

Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1, 000, he shall be fined under this title or imprisoned not more than one year, or both.

Section 872 of Title 18, United States Code is part of the crimes and criminal procedure section of the United States Code, and does not provide for a civil remedy.

         Plaintiffs also bring a claim under 26 U.S.C. § 7214. Section 7214 also does not provide for a civil remedy, as it is part of Chapter 75, which is titled Crimes, Other Offenses, and Forfeitures. Section 7214 states:

(a) Unlawful acts of revenue officers or agents.--Any officer or employee of the United States acting in connection with any revenue law of the United States--
(1) who is guilty of any extortion or willful oppression under color of law; or
(2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty; or
(3) who with intent to defeat the application of any provision of this title fails to perform any of the duties of his office or employment; or
(4) who conspires or colludes with any other person to defraud the United States; or
(5) who knowingly makes opportunity for any person to defraud the United States; or
(6) who does or omits to do any act with intent to enable any other person to defraud the United States; or
(7) who makes or signs any fraudulent entry in any book, or makes or signs any fraudulent certificate, ...

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