United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
Cuong Doan, who proceeds without counsel in this action,
requests leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (ECF No. 2.) Plaintiff's application
in support of his request to proceed in forma pauperis makes
the showing required by 28 U.S.C. § 1915. Accordingly,
the court grants plaintiff's request to proceed in forma
determination that a plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant to 28 U.S.C.
§ 1915, the court is directed to dismiss the case at any
time if it determines that the allegation of poverty is
untrue, or if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant.
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
avoid dismissal for failure to state a claim, a complaint
must contain more than “naked assertions, ”
“labels and conclusions, ” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
(2007). In other words, “[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). Furthermore, a claim upon which the
court can grant relief has facial plausibility.
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. When considering whether a
complaint states a claim upon which relief can be granted,
the court must accept the well-pled factual allegations as
true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and construe the complaint in the light most favorable to the
plaintiff, see Papasan v. Allain, 478 U.S. 265, 283
A federal court has an independent duty to assess whether
federal subject matter jurisdiction exists, whether or not
the parties raise the issue. See United Investors Life
Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967
(9th Cir. 2004) (stating that “the district court had a
duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties
raised the issue or not”); accord Rains v.
Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).
The court must sua sponte dismiss the case if, at any time,
it determines that it lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(h)(3). A federal district court generally has
original jurisdiction over a civil action when: (1) a federal
question is presented in an action “arising under the
Constitution, laws, or treaties of the United States”
or (2) there is complete diversity of citizenship and the
amount in controversy exceeds $75, 000. See 28
U.S.C. §§ 1331, 1332(a).
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v.
Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.
1988). Unless it is clear that no amendment can cure the
defects of a complaint, a pro se plaintiff proceeding in
forma pauperis is ordinarily entitled to notice and an
opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)
superseded on other grounds by statute as stated in Lopez
v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
case, plaintiff alleges that defendants, and tax exempt
corporations, Vietnamese Buddhist Association of Sacramento
and Kin Quang Buddhist Youth Association failed to timely and
sufficiently respond to plaintiff's request to inspect
their corporate documents, in violation of 26 U.S.C. §
6104(d). (See ECF No. 1 at 2-4, 18.) Plaintiff also
alleges that these corporations and the other named
defendants use their tax exempt statuses and other nefarious
schemes to illegally enrich themselves. (See
generally ECF No. 1.) According to plaintiff,
Petitioner used to go [to] the KIM QUANG TEMPLE to pay
respect to Buddha and has made hundreds if not thousands in
cash donations. Had Petitioner known about the corruption,
taken place among the monks, Petitioner would not have made
these donations. Petitioner, as well as the California
citizens, were deceived and cheated, and became the victims
of a large fraudulent scam.
(ECF No. 1 at 15.)
complaint seeks an order compelling defendants to disclose
certain corporate documents; creating a trust comprised of
defendants' assets; and awarding plaintiff monetary
sanctions, among other demands. (ECF No. 18-20.) Importantly,
the complaint does not list any claims or causes of action.
It does invoke 26 U.S.C. § 6104, 26 C.F.R. §
301.6104(a)-1, et seq., and 42 U.S.C. §
1985(2). (Id. at 18.)
to 26 U.S.C. § 6104, certain tax-exempt organizations
are required to make their tax returns available for public
inspection. The Internal Revenue Service has enacted
regulations that deal with the implementation of 26 U.S.C.
§ 6104. See 26 C.F.R. § 301.6104(a)-1,
et seq. Here, plaintiff seeks redress because
defendants have allegedly violated this statute and
regulatory scheme vis-à-vis plaintiff's request to
inspect defendants' corporate documents. However, as the
Supreme Court has clarified, “the fact that a federal
statute has been violated and some person harmed does not
automatically give rise to a private cause of action in favor
of that person.” Cannon v. Univ. of Chicago,
441 U.S. 677, 688 (1979). Indeed, courts considering 26
U.S.C. § 6104 have uniformly determined that there is no
private right of action under the statute. See, e.g., Tax
Analysts v. I.R.S., 214 F.3d 179, 186 (D.C. Cir. 2000);
Schuloff v. Queens Coll. Found., Inc., 994 F.Supp.
425, 428 (E.D.N.Y. 1998), aff'd, 165 F.3d 183
(2d Cir. 1999); accord Tax Analysts v. I.R.S., 410
F.3d 715, 718 (D.C. Cir. 2005). As such, plaintiff cannot
state any claim under 26 U.S.C. § 6104 or 26 C.F.R.
§ 301.6104(a)-1, et seq.
also asserts that “[a]ll facts, and/or complaints
pleaded in this petition, involve a federal issued under 42
U.S.C. § 1985(2).” (ECF No. 1 at 18.) However,
such a conclusory assertion does not come close to stating a
claim. See Iqbal, 556 U.S. at 678. Even liberally
construed, it is unclear how 42 U.S.C. § 1985(2)-which
prohibits a conspiracy to obstruct justice or intimidate a
party, witness, or juror-pertains to the allegations listed
in the complaint.
fails to state any claim arising under the Constitution,
laws, or treaties of the Unites States. Furthermore, there is
no diversity of citizenship jurisdiction, because plaintiff
and defendants are all citizens of California. Consequently,