United States District Court, W.D. Washington, Seattle
RONALD W. EWART, Plaintiff,
THE INTERNAL REVENUE SERVICE, Defendant.
ORDER DISMISSING ACTION AND DENYING MOTION FOR
ISSUANCE OF SUMMONS
L ROBART UNITED STATES DISTRICT JUDGE
the court are pro se Plainitff Ronald W. Ewart's
complaint against the Internal Revenue Service
("IRS") (Compl. (Dkt. # 9)); Magistrate Judge Brian
A. Tsuchida's order granting Mr. Ewart in forma
pauperis ("IFP") status and recommending that
the court review Mr. Ewart's complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) (IFP Order (Dkt. # 8) at 1); and
Mr. Ewart's motion to proceed with the issuance of the
summons (Mot. (Dkt. # 10)). Under 28 U.S.C. § 1915(e),
district courts have authority to review IFP complaints and
must dismiss them if "at any time" it is determined
that a complaint is frivolous, malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2); see also Id. §
l9l5A(b)(1); Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000) (clarifying that § 1915(e) applies to
all IFP proceedings, not just those filed by prisoners). As
discussed below, Mr. Ewart's complaint falls within the
category of pleadings that the court must dismiss. Because
the court dismisses Mr. Ewart's complaint, Mr.
Ewart's motion to issue a summons is likewise denied as
Ewart brings suit against the IRS for "knowingly and
with malice illegally seiz[ing] 15% of. [Mr. Ewart's]
Social Security benefits in the total amount of $10, 000, for
an alleged tax penalty." (Compl. at 2.) On February 19,
2013, the IRS notified Mr. Ewart that he and his wife's
Marital Community Form 1040 was "improperly
submitted" and that a correction must be provided within
30 days to avoid a $10, 000.00 penalty. (Id. at 3.)
Three days later, on February 22, 2013, Mr. Ewart responded
via letter that he would "comply conditionally" but
"requir[ed] a response by the IRS to said conditions in
a legal affidavit." (Id. at 4.) Mr. Ewart
subsequently sent another letter on April 5, 2013, stating
that "the IRS was in default and had dishonored [Mr.
Ewart's] affidavit, rendering the IRS's penalty for
Form 1040 ... null and void." (Id.) The IRS
allegedly did not reply to either of the letters.
12, 2013, the IRS informed Mr. Ewart and his wife of a $10,
000.00 penalty levied against them. (Id. at 4-5.) On
August 2, 2013, Mr. Ewart again sent a written letter to the
IRS, "agreeing to conditionally comply with said
'Notice of Penalty Charge', subject to the IRS
providing responses to the conditions contained in said
affidavit." (Id. at 5.) The IRS, on August 5,
2013, notified Mr. Ewart and his wife that it intended to
seize their property or their rights to property for an
amount totaling $10, 000.00. (Id.) In response, on
August 6, 2013, Mr. Ewart once again mailed his previous
affidavits to the IRS. (Id.)
next month, the Ewarts continued to send the IRS
correspondence, including an "'Innocent Spouse'
Affidavit" and "multiple C-RRR letters" to
various branches. (Id. at 6.) The IRS allegedly did
not respond. (See id.) On April 16, 2014, and May 5,
2014, the IRS began its monthly seizures from Mr. and Mrs.
Ewart's Social Security benefits respectively.
(Id.) These seizures continued until March of 2017,
presumably when the full sum of the penalty was collected.
(See Id. at 7.)
Ewart filed two claims for refund in February and June of
2017, both of which have allegedly gone unanswered.
(Id. at 2-3.) After six months had elapsed with no
response, Mr. Ewart filed the present suit for a refund,
alleging that "[t]he IRS has defaulted upon and
dishonored [the Ewarts'] many affidavits."
(Id. at 7.) Mr. Ewart further alleges that by
failing to respond to the Ewarts' many written mailings,
"all IRS demands ... were and are null and void by such
default and by operation of law." (Id.) Mr.
Ewart brings several claims against the IRS: (1) knowing and
malicious seizure of the Ewarts' Social Security
benefits; (2) harassment and intimidation through the
IRS's consistent mailing of notices; (3) violation of the
Fair Debt Collection Practices Act; (4) violation of the IRS
Restructuring and Reform Act; (5) violation of the
Ewarts' civil rights under 42 U.S.C. § 1983; (6)
violation of due process under the Fifth Amendment; and (7)
infliction of "intense emotional distress" through
the IRS's "open and blatant harassment with the full
intent to intimidate." (Id. at 7-10.)
Ewart seeks damages in the amount of $10, 000 plus any court
costs. (Id. at 10.) Mr. Ewart also seeks a letter
from the IRS "stating that there were and are no taxes
or tax penalties due" and that "the collection of
said tax penalty was a gross error, " as well as a
"letter from the Secretary of the Treasury, on the
Secretary's letterhead, and signed by the Secretary"
that "apologiz[es] to the [Ewarts] for the harassment,
intimidation, badgering and coercion received at the hands of
the IRS." (Id. at 10-11.)
January 2, 2018, Magistrate Judge Tsuchida, in granting Mr.
Ewart IFP status, recommended that this court undergo a 28
U.S.C. § 1915(e)(2)(B) review of Mr. Ewart's
complaint. Mr. Ewart subsequently submitted his own §
1915(e)(2)(B) review of the complaint, concluding that the
complaint survives § 1915 review and requesting that the
court issue the summons to be served. (Mot. at 1-2.)
28 U.S.C. § 1915(e)(2)(B) authorizes a district court to
dismiss a claim filed IFP "at any time" if it
determines: (1) the action is frivolous or malicious; (2) the
action fails to state a claim; or (3) the action seeks relief
from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2)(B). Dismissal for failure to
state a claim "is proper if there is a lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory."
Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir. 2011) (internal quotation marks omitted). An IFP
complaint must contain factual allegations "enough to
raise a right to relief above the speculative level."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The court need not accept as true a legal conclusion
presented as a factual allegation. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Although the pleading
standard announced by Federal Rule of Civil Procedure 8 does
not require "detailed factual allegations, " it
demands more than "an unadorned,
Id. (citing Twombly, 550 U.S. at 555);
see Fed. R. Civ. P. 8(a). The court concludes that
Mr. Ewart's complaint contains both a lack of a
cognizable legal theory and the absence of sufficient facts.
regards to the primary claim of refund, Mr. Ewart fails to
articulate a cognizable legal theory detailing how the
penalty deriving from the allegedly improper Form 1040 is
unlawful. He does not, for instance, allege that the Form
1040 was correctly filed, or that the penalty assessed was
calculated inaccurately. (See Compl.) Instead, Mr.
Ewart's assertions focus on how the IRS did not respond
to any of the numerous letters that he submitted.
(See Compl. at 4-7.) Mr. Ewart offers no cognizable
legal theory that the IRS must respond to his conditions to
collect the aforementioned penalty, and the court is unaware
of any such legal theory. (See id.) Although Mr.
Ewart includes some case law within the complaint
(id. at 7), none of the cited precedent pertains to
a tax penalty refund, see, e.g., United States v.
Kis, 658 F.2d 526, 536 (7th Cir. 1981) (discussing the
government's burden when initiating summons enforcement
proceedings). Indeed, some of the cited case law do not
involve tax collection at all. See Grp. v.
Finletter, 108 F.Supp. 327, 328 (D.D.C. 1952)
(considering whether defendant acted illegally in attempting
to reduce the plaintiffs military rank); Morris v.
Nat'l Cash Register, 44 S.W.2d 433, 433-34 (Tex.
Civ. App. 1931) (considering a motion to vacate a judgment in
a chattel mortgage matter). It is thus unclear how these
cases cited in the complaint pertain to the issue at hand-the
IRS's collection of a penalty resulting from an
improperly filed Form 1040. Accordingly, the court dismisses
Mr. Ewart's first claim for failure to state a claim.
Ewart's remaining claims do not fare any better. Mr.
Ewart fails to include sufficient factual allegations to
support his allegations of harassment in claims 2 and 7. He
summarily states that the IRS acted knowingly and with
malice, relying on his past interactions with the agency.
(Compl. at 8.) However, none of those interactions-many of
which were the standard notices that the IRS must give before
collecting any penalty- are sufficient to support the
allegation of harassment and intimidation. Furthermore, Mr.
Ewart includes only legal conclusions in his claims regarding
the Fair Debt Collection Practices Act, the IRS Restructuring
and Reform Act, and due process under the Fifth Amendment.
(Id. at 9.) The complaint says nothing more about
these claims other than the "unadorned,
the-defendant-unlawfully-harmed-me accusation" that the
IRS has violated each of the above.(See id.); see Iqbal,
556 U.S. at 678. Such accusations are insufficient.
Iqbal, 556 U.S. at 678. And lastly, Mr. Ewart's
§ 1983 claim cannot survive, as § 1983 prohibits
interference with federal rights under color of ...