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Alfonso v. IRS

United States District Court, M.D. Florida, Ocala Division

June 26, 2019

OSVALDO ALFONSO Plaintiff,
v.
IRS, et al., Defendants.

          REPORT AND RECOMMENDATION [1]

          PHILIP R. LAMMENS, UNITED STATES MAGISTRATE JUDGE.

         Upon referral, this case is before the Court on pro se Plaintiff's motion to proceed in forma pauperis. The Court previously took under advisement Plaintiff's motion to proceed in forma pauperis and gave Plaintiff until June 7, 2019 to file an Amended Complaint, which he has now done. (Doc. 6). For the following reasons, Plaintiff's motion to proceed in forma pauperis (Doc. 4) should be denied and the Amended Complaint (Doc. 6) should be dismissed.

         I. BACKGROUND

         Plaintiff has filed an Amended Complaint purporting to bring claims against the following defendants: IRS, EBSA, Local Government Retirement System-Non FRS, City of Sunrise, FL, and Resource Centers LLC. In the various filings with the court, Plaintiff has alleged that the City of Sunrise embezzled $196, 951.00 of his retirement money. (Doc. 1). Plaintiff vaguely alleges that other defendants have failed to supervise and protect his retirement benefits (presumably related to the 2004 theft), but he offers no explanation as to how this gives rise to a cause of action. (Doc. 2); (Doc. 6). Plaintiff also alleges that in his 2017 income tax return he claimed a capital gains loss for the alleged theft of his retirement funds from his retirement account and that the IRS assessed a $5, 000 penalty for this claim, stating that it was a frivolous position. (Doc. 2 at 1); (Doc. 6 at 2).[2]Plaintiff takes issue with the IRS's handling of his claim and imposition of the penalty.

         II. LEGAL STANDARDS

         An individual may be allowed to proceed in forma pauperis if he declares in an affidavit that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). However, before a plaintiff is permitted to proceed in forma pauperis, the Court is obligated to review the complaint to determine whether it is frivolous, malicious, “fails to state a claim upon which relief may be granted[, ]” or . . . “seeks monetary relief against a defendant who is immune from such relief.” Id. § 1915(e)(2). If the complaint is deficient, the Court is required to dismiss the suit sua sponte. Id.

         “A lawsuit is frivolous if the plaintiff's realistic chances of ultimate success are slight.” Clark v. Ga. Pardons and Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1984) (internal citations omitted). The district court may dismiss a complaint under § 1915 on grounds of frivolousness if an affirmative defense would defeat the action. Id. at 640. For example, the absolute immunity of the defendant would justify the dismissal of a claim as frivolous. Id. at 640, n. 2. “When the defense is apparent from the fact of a complaint or the court's records, courts need not wait and see if the defense will be asserted in a defensive pleading.” Id. Indeed, “[i]ndigence does not create a constitutional right to the expenditure of public funds and the valuable time of the courts in order to prosecute an action which is totally without merit.” Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984)(citing Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979)).

         In evaluating a complaint under § 1915, a document filed pro se is to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. While Rule 8(a), Federal Rules of Civil Procedure, does not require detailed factual allegations, “it demands more than an unadorned, the defendant unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677-8 (2009). A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.

         The Eleventh Circuit utilizes a two-pronged approach in its application of the holdings in Iqbal and Twombly. First, “eliminate any allegations in the complaint that are merely legal conclusions, ” and then, “where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). In applying these principles, the Court can infer “‘obvious alternative explanation[s],' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556 U.S. at 682). In short, the law requires something more “than an unadorned the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

         Further, federal courts are courts of limited jurisdiction and therefore, have an obligation to inquire into their subject matter jurisdiction. See Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). Parties seeking to invoke the limited jurisdiction of the federal court over a cause of action must show that the underlying claim is based upon either diversity jurisdiction (controversies exceeding $75, 000 between citizens of different states) or the existence of a federal question (i.e., “a civil action arising under the Constitution, laws, or treaties of the United States”) in which a private right of action has been created or is implied by Congressional intent. See 28 U.S.C. 1331 and 1332.

         III. DISCUSSION

         Although Plaintiff is proceeding pro se in this action, he is “still required to conform to procedural rules, and the court is not required to rewrite a deficient pleading.” Washington v. Dept. of Children and Families, 256 Fed.Appx. 326, 327 (11th Cir. 2007). While the Court gives more deference to pro se litigants, this deference “does not give a court license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Investments v. County of Escambia, Florida, 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citations omitted). Despite being given the opportunity to amend, Plaintiff's Amended Complaint still fails to state a claim.

         At the most basic level, Plaintiff's Amended Complaint fails to comply with the pleading requirements of the Federal Rules of Civil Procedure. Plaintiff's Amended Complaint is not a short and plain statement of his claims, as required by Rule 8, Fed. R. Civ. P.[3] Here, Plaintiff names five defendants without pleading sufficient factual allegations stating how each defendant is legally responsible for each of the alleged wrongs. This has made the Court's task of discerning his particular claims more difficult. With that said, Plaintiff's claims are clearly frivolous and due to be dismissed.

         Plaintiff's claims appear to fall into essentially two categories, those that stem from the alleged theft of his retirement benefits in 2004, and those against the IRS for improper assessment of civil penalties. First, Plaintiff takes issue with the alleged theft of his retirement funds by the City of Sunrise in 2004. Indeed, he states “[p]er the Plaintiff's 2004 IRS transcript, on 06/04/2004 the City of Sunrise misappropriated and embezzled $196, 951.46 from the plaintiff.” (Doc. 6). With respect to the theft, any claim against any defendant[4] arising out of the alleged theft is time-barred, regardless of whether Plaintiff is attempting to bring it under federal law[5] or state law. Plaintiff commenced this action on April 23, 2019, well after the expiration of the six-year ...


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