United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
se Plaintiff Schere' Denica Gray has sued the United
States Department of Treasury (Treasury). In
Complaint (ECF No. 1), he alleges the Treasury breached the
terms of a trust of which he is the sole beneficiary. The
Treasury has filed a Motion to Dismiss (ECF No. 8), which
Gray opposes (ECF No. 10). Also pending are Gray's
Request for Entry of Summary Judgment (ECF No. 12), Request
to Seal the Case Record (ECF No. 13), and Request for In
Camera Review (ECF No. 14).
following reasons, the Court will GRANT WITH
PREJUDICE the Treasury's Motion to Dismiss (ECF
No. 8) and DENY all of Gray's motions.
FACTS AND PROCEDURAL HISTORY
October 11, 2016, the IRS issued a Notice of Jeopardy Levy
and Right of Appeal (Notice) to Gray, explaining that it
determined he had submitted a frivolous 1040 federal income
tax return for tax year 2015, which falsely claimed
withholding credits that did not exist and resulted in a
fraudulent tax refund of $170, 987.00. ECF No. 1-4 at 2. The
Notice also explained that, according to IRS records, he had
attempted to place the refund beyond the reach of the
Government. Id. Accordingly, the IRS issued a levy
on his bank account. Id.
October 27, 2016, Gray executed what he termed a “Deed
of Special Trust, ” identifying himself as both the
“collateral” and Beneficiary and designating the
Treasury as the Trustee. ECF No. 1-2 at 2. The document was
delivered to the Treasury on October 31, 2016. ECF No. 1-3.
November 23, 2016, Gray filed the present action, alleging
that the Treasury, as “Trustee, ” violated the
terms of the trust by issuing “letters of
administration stylized as ‘Notice of Levy.'”
ECF No. 1 ¶¶ 4-8. He asks the Court to compel the
Treasury to: (1) perform according to the terms of the trust;
(2) release the levy against the trust property and return
all property to the beneficiary; and (3) enjoin the Trustee
and its fiscal agents from transferring or disposing of the
property outside of the terms of the trust. ECF No. 1 at 4.
Treasury filed its Motion to Dismiss on March 31, 2017. ECF
No. 8. It contends dismissal is required because the Court
lacks jurisdiction and the Complaint fails to state a claim
upon which relief can be granted. ECF No. 8-1 at 1. Gray
filed his opposition on April 17, 2017, and a subsequent
motion for summary judgment on May 19, 2017.
Motion to Dismiss
motion to dismiss for failure to state a claim under Rule
12(b)(6) should be granted if the allegations in a complaint
do not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A party may move for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(1) where
the court lacks subject matter jurisdiction over the claims
alleged in the complaint. Fed.R.Civ.P. 12(b)(1). Federal
courts are courts of limited subject matter jurisdiction:
they “possess only the jurisdiction authorized them by
the United States Constitution and by federal
statute.” See United States ex rel.
Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009)
(citing Bowles v. Russell, 551 U.S. 205 (2007)). As
the party asserting jurisdiction, the plaintiff bears the
burden of proving that the district court has subject matter
jurisdiction. See Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
Treasury rightly construes Gray's Complaint as barred by
the doctrine of sovereign immunity. When a governmental
entity is sued and Congress has not waived sovereign immunity
as to the claim, sovereign immunity deprives the court of
jurisdiction to hear the case. See Global Mail Ltd. v.
United States Postal Serv., 142 F.3d 208, 210 (4th
Cir.1998). Once a district court determines that it lacks
subject matter jurisdiction over an action, it must dismiss
the action. Vuyyuru, 555 F.3d at 347 (citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07
(2006)). Gray has failed to establish (or even allege) that
the Treasury has waived sovereign immunity to justify
jurisdiction in this case.
event, the outcome would be the same even if Gray had sued a
proper defendant. His Complaint fails to plead a claim that
is plausible on its face. Though a plaintiff proceeding
pro se is entitled to have his complaint construed
liberally, this requirement “does not transform the
court into an advocate.” United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
Complaint identifies no fiduciary duty nor breach of same by
the Treasury. His trust theory is pure fantasy. Apart from
the absurdity of the theory, to create a trust by written
declaration in Maryland, the writing must identify the trust
property. Md. Code Ann. Est. & Trusts § 14-404(b). A
person cannot be trust property. See Id. §
14-401(j), (o) (defining “person” and
“trust property”). Gray's attached
“Deed of Special Trust” which identifies himself
as the “collateral” is equally nonsensical.
See ECF No. 1-2. But even if he had identified
cognizable property, Gray delivered no property to-nor was
any accepted by-the Treasury, as required by Maryland law for