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Dawveed v. Starks

United States District Court, D. Maryland

February 26, 2015

MEHLEK DAWVEED
v.
W. STARKS, ET AL

MEMORANDUM OPINION

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.

I. Background

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:

As noted, if Mr. Dawveed can show that he properly exhausted administrative remedies, he may be able to state a claim for damages against the government pursuant to 26 U.S.C. § 7433. In order to state a sufficient claim for relief under § 7433, the taxpayer must allege that an "officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregard[ed] any provision of this title, or any regulation promulgated under this title." In addition to demonstrating proper exhaustion in accordance with 26 C.F.R. § 301.7433-1(e), the complaint must identify the allegedly offending official, cite the code provision or regulation allegedly violated, and set forth facts which, if proven, would establish that the official intentionally, recklessly, or negligently disregarded the cited provision or regulation. See Stephens v. United States, No. CV407-194, 2008 WL 3554125, at *3 (S.D.Ga. Aug. 4, 2008). The offending conduct, moreover, must have occurred within two years of the date the complaint was filed, see 26 U.S.C. § 7433(d)(3), and damages are limited to a maximum of one million dollars, see 26 U.S.C. § 7433(b).

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).[1] Plaintiff was required to file an amended complaint within twenty-one (21) days, but he failed to do so and the court directed the clerk to close the case on March 5, 2013.[2]

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 (4th Cir.1975) (holding pro se plaintiffs should be advised of their right to file responsive material to a motion for summary judgment). Plaintiff moved to strike the motion to dismiss. (ECF No. 11). Defendants opposed the motion to strike (ECF No. 12), and Plaintiff replied (ECF No. 13).

II. Analysis

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:

The United States is entitled to sovereign immunity unless it consents to be sued. See United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). Not only is such consent lacking here, but an outright prohibition from suit obtains: The Anti-Injunction Act deprives the Court of jurisdiction to enjoin the ability of the IRS to assess and collect taxes. See 26 U.S.C. § 7421 ("Anti-Injunction Act"). Specifically, the Act provides that, aside from specifically enumerated exceptions, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." Id. § 7421(a). This language aims to "withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes." Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 5, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962).

(emphasis added); Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 405 (4th Cir. 2003) (noting that "courts lack jurisdiction to issue injunctive relief in suits seeking to restrain the assessment or collection of taxes.").

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 ...


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