DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this tax lien case are the motion to dismiss filed by Defendants W. Starks and Keith E. Belkin (ECF No. 8), and a motion to strike filed by pro se Plaintiff Mehlek Dawveed (ECF No. 11). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted and the motion to strike will be denied.
Plaintiff Mehlek Dawveed commenced the first of these actions on March 7, 2012, by filing a complaint against Keith E. Belkin, an employee of the Internal Revenue Service ("IRS"). (Civ. No. DKC 12-0711, ECF No. 1). On October 3, 2012, Plaintiff filed another complaint against Keith E. Belkin and the Department of the Treasury and the IRS. (See Civ. No. DKC 12-2935). Defendants moved to dismiss both actions, alleging lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. The court consolidated the cases for purposes of adjudicating the motions to dismiss. The complaint in those cases — much like Plaintiff's complaint here — related to a federal tax lien assessed against Mr. Dawveed. On February 7, 2013, the undersigned issued a memorandum opinion and order in Civ. No. DKC 12-0711 and Civ. No. DKC 12-2935, granting the motions to dismiss, but allowing Plaintiff leave to amend the complaint:
See Dawveed v. Belkin, Civ. Action No. DKC 12-0711, DKC 12-2935, 2013 WL 497990, at *3 (D.Md. Feb. 7, 2013) (emphasis added).
Over a year later, on May 13, 2014, Plaintiff filed a complaint in the Circuit Court for Montgomery County, Maryland, naming W. Starks and Keith E. Belkin — two employees of the IRS — as defendants. (ECF No. 2). Subsequently, Defendants removed to this court pursuant to 28 U.S.C. §§ 1441 & 1442. (ECF No. 1). On June 28, 2014, Defendants moved to dismiss. (ECF Nos. 8 & 9). Plaintiff was provided with a Roseboro notice (ECF No. 10), which advised him of the pendency of the motion to dismiss and his entitlement to respond within seventeen (17) days from the date of the letter. Roseboro v. Garrison, 528 F.2d 309, 310 (4
Plaintiff's complaint — which is a far cry from a model of clarity — resembles his prior actions against IRS employees. In the instant case, Plaintiff asserts that Defendants committed constitutional violations by seizing his PNC bank account in the amount of $188,567 on May 20, 2011, and issuing a "wrongful tax lien/levy/seizure judgment in the amount of $1,332,575.11 on February 22, 2012 in [the] Circuit Court for Montgomery County/Civil System Case Number 93260F for Tax Year(s) 2010 and 2011." (ECF No. 2, at 1). Plaintiff also appears to allege violations of the Maryland Declaration of Rights and various federal statutes.
As explained in the February 7, 2013 memorandum opinion, individual employees of the IRS are not proper defendants here, as the United States is the real party in interest. Thus, the United States will be substituted as the proper defendant. Moreover, as explained below, there are significant limits on suits against the United States.
Plaintiff argues that he is "allowed to file this lawsuit against Defendants for the purpose of restraining the assessment or collection of taxes." (ECF No. 11, at 1). As Judge Messitte explained in Bullard v. United States, 486 F.Supp.2d 512, 515 (D.Md. 2007), however:
(emphasis added); Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 405 (4
Insofar as Plaintiff seeks monetary damages, the United States Code contains a waiver of sovereign immunity for misconduct by the IRS. Specifically, 26 U.S.C. § 7433(a) provides that "[i]f, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title. . . such taxpayer may bring a civil action for damages against the United States." 26 U.S.C. § 7432 states that "[i]f any officer or employee of the Internal Revenue Service knowingly, or by reason of negligence, fails to release a lien under section 6325 on property of the taxpayer, such taxpayer may bring a civil action for damages against the United States in a district court of the United States." A plaintiff must exhaust the administrative remedies available within the IRS before bringing suit for violations under both sections, however. See Robertson v. United States, Civ. No. WDQ-13-1383, 2014 WL 465714, at *3 (D.Md. Feb. 4, 2014) ("Because Robertson has not exhausted his administrative remedies, the Court does not have jurisdiction over his § 7432 claim.").
Plaintiff asserts that he exhausted his administrative remedies by filing an action in the United States Court of Federal Claims.
Insofar as Plaintiff asserts a claim under 26 U.S.C. § 7422 for a tax refund, there also is no indication that he filed timely a claim for refund with the IRS. (See ECF No. 2, at 2, ("Defendants failed to calculate the $133,588 paid to the State of Maryland . . . for tax year 2010 and the $188,567 illegally seized from PNC Bank account on May 20, 2011 in their method of assessment and recording verification process, of which culminated in the $1,332,575.11 withholding of tax refund for year 2011") (emphasis added)); Rodriguez v. Aiello, 1997 WL 440747, at *1 (D.Md. Apr. 8, 1997) (noting that filing a claim with the IRS for a refund is a jurisdictional predicate to the filing of a Section 7422(a) action in district court).
Tolliver v. I.R.S., Civ. Action No. PJM-12-1821, 2012 WL 2579341, at *1 (D.Md. July 3, 2012), explained the process for filing a timely claim for refund with the IRS:
(emphasis added). Here, Plaintiff has not provided any evidence that he filed timely a claim for refund with the IRS, a prerequisite to this court's jurisdiction. See Beckwith Realty, Inc. v. United States, 896 F.2d 860, 862 (4
Considering the allegations in the complaint, it appears that too much time has elapsed for Plaintiff to exhaust administratively any of the claims raised in the complaint. Accordingly, Plaintiff is unable to satisfy the prerequisites to assert subject matter jurisdiction, thus dismissal of all claims raised in the instant matter will be with prejudice. See, e.g., McCray v. Maryland Dept. of Transp., Civ. Action No. ELH-11-3732, 2014 WL 4660793, at *11 (D.Md. Sept. 16, 2014) (dismissing Title VII claims with prejudice because plaintiff failed to file her discrimination claims with the EEOC in a timely manner); Lee v. Safeway, Inc., Civ. Action No. RDB-13-3476, 2014 WL 4926183, at *7 (D.Md. Sept. 30, 2014) ("Lee has not satisfied the prerequisite of filing her charge with the EEOC for alleged discrimination that occurred beyond the above dates. This Court thus does not have subject matter jurisdiction over the associated claims. [] Accordingly, her Complaint related to alleged incidents outside the statutory periods must be dismissed with prejudice").
For the foregoing reasons, the motion to dismiss for lack of subject matter jurisdiction will be granted. The motion to strike filed by Plaintiff will be denied. The complaint will be dismissed with prejudice, thus Plaintiff is cautioned not to file any further lawsuits arising from these claims. A separate order will follow.