Filed: Sep. 22, 2015
Latest Update: Sep. 22, 2015
Summary: ORDER TIMOTHY J. CORRIGAN , District Judge . Pro se plaintiff Walter J. Lawrence filed this suit for damages against Stephen D. Halker, an employee of the Internal Revenue Service, claiming that Halker acted outside the scope of his delegated authority when he sent Lawrence a letter dated October 9, 2014 which reviewed assessed penalties and taxes for 2004, 2005, 2006 and 2007 and advised that a penalty assessed against Lawrence with regard to his 2005 taxes could not be removed. See Do
Summary: ORDER TIMOTHY J. CORRIGAN , District Judge . Pro se plaintiff Walter J. Lawrence filed this suit for damages against Stephen D. Halker, an employee of the Internal Revenue Service, claiming that Halker acted outside the scope of his delegated authority when he sent Lawrence a letter dated October 9, 2014 which reviewed assessed penalties and taxes for 2004, 2005, 2006 and 2007 and advised that a penalty assessed against Lawrence with regard to his 2005 taxes could not be removed. See Doc..
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ORDER
TIMOTHY J. CORRIGAN, District Judge.
Pro se plaintiff Walter J. Lawrence filed this suit for damages against Stephen D. Halker, an employee of the Internal Revenue Service, claiming that Halker acted outside the scope of his delegated authority when he sent Lawrence a letter dated October 9, 2014 which reviewed assessed penalties and taxes for 2004, 2005, 2006 and 2007 and advised that a penalty assessed against Lawrence with regard to his 2005 taxes could not be removed. See Doc. 1. Lawrence claims Halker violated Lawrence's rights under the Fourth, Fifth and Fourteenth Amendments when Halker allegedly imposed and assessed taxes for 2004, 2005, 2006 and 2007 that the IRS had not assessed, thus giving rise to a Bivens1 action. Doc. 1.2 The United States filed a motion to dismiss based on lack of subject matter jurisdiction (Doc. 7); Lawrence filed a response in opposition (Doc. 10).
A Bivens action may be brought against a federal employee in his individual capacity for violations of constitutional rights if "the plaintiff has no alternative means of obtaining redress" and "no special factors counseling hesitation are present." Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004). Congress has provided a means of redress with regard to the recovery of damages against IRS employees for wrongful collection activities. See Al-Sharif v. United States, 296 F. App'x 740, 741-42 (11th Cir. 2008) (citing 26 U.S.C. § 7433(a) as the "exclusive remedy" for recovering damages against an IRS employee for wrongful collection activities and 28 U.S.C. § 1346(a)(1) as the remedy to recover from the United States erroneously or illegally assessed or collected internal revenue taxes3). Thus, the availability of statutory relief "forecloses a Bivens action against individual IRS agents for alleged constitutional violations with respect to the collection and assessment of taxes." Id. at 742. See also Zajac v. Clark, 2015 WL 179333, *5 (M.D. Fla. Jan. 14, 2015) (citing numerous cases for the proposition that a Bivens action may not be maintained against IRS officials for alleged constitutional violations related to the assessing and collecting of taxes); Lawrence v. United States, 229 F.3d 1152, 2000 WL 1182452, *2 (6th Cir. 2000) (holding that Lawrence (the same plaintiff as here) could not maintain a Bivens action against individual IRS officials for conduct related to IRS collection activities).4 Lawrence, therefore, cannot bring a Bivens action against Halker and his complaint is therefore due to be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).5 See Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (while the Court construes the filings of pro se parties more liberally than those filed by lawyers, this does not mean that the Court can rewrite plaintiff's filings to create a cause of action where one does not exist). Because there are no circumstances in which Lawrence's complaint could be cured by amendment, the case is due to be dismissed with prejudice. See Brewer v. Commissioner, Internal Revenue, 435 F.Supp.2d 1174, 1176-78 (S.D. Ala. 2006) (denying leave to amend complaint to bring Bivens action against individual IRS employees because the effort would be futile).
Accordingly, it is hereby
ORDERED:
The United States' Motion to Dismiss (Doc. 7) is granted to the extent that this case is dismissed with prejudice for failure to state a claim. The Clerk shall close the file.
DONE AND ORDERED.
