United States District Court, M.D. Florida, Jacksonville Division
KENNETH R. PARSONS, Plaintiff,
THE COMMISSIONER OF THE INTERNAL REVENUE SERVICE, et al., Defendants.
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
se plaintiff filed this suit against the Commissioner of
the Internal Revenue Service and four unknown individual
employees of the IRS seeking monetary damages in an amount of
at least $1, 000, 000.00, declaratory and injunctive relief.
See Doc. 1. On October 18, 2019, the Commissioner
filed a motion to dismiss, which it served on plaintiff by
U.S. mail. See Doc. 4. On November 19, 2019, when
plaintiff had failed to timely respond to the motion, the
Court issued an Order sua sponte giving him an
extension until December 9, 2019 to respond, and warning him
that his failure to respond would result in the Court
treating the motion to dismiss as unopposed, which could
result in the dismissal of his case. See Doc. 5. The
Clerk mailed a copy of this Order to plaintiff. Plaintiff
failed to file anything in response and the Court therefore
treats the Commissioner's motion to dismiss as
courts are courts of limited jurisdiction, and in accordance
with Federal Rule of Civil Procedure 12(b)(1), the Court must
dismiss claims over which it has no subject matter
jurisdiction. The Court has no subject matter jurisdiction to
issue any declaratory or injunctive relief for the purpose of
restraining the assessment or collection of taxes and those
claims are therefore dismissed without
prejudice. See 26 U.S.C. § 7421;
Hempel v. United States, 14 F.3d 572, 573 (11th Cir.
1994); Taliaferro v. Freeman, 595 Fed.Appx. 961, 962
(11th Cir. 2014).
Federal Rule of Civil Procedure 12(b)(6), a complaint is
subject to dismissal if it fails to state a claim. In making
this evaluation, the Court accepts all of plaintiff's
allegations as true, construing them in the light most
favorable to the plaintiff. Lopez v. Target Corp.,
676 F.3d 1230, 1232 (11th Cir. 2012). Plaintiff seeks to
assert constitutional and tort claims for damages which, in
other circumstances, might be available under Bivens v.
Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and the Federal Tort
Claims Act, 28 U.S.C. § 1346. However, the exclusive
remedy for tax collection activity is set forth in 26 U.S.C.
§ 7433. See Al-Sharif v. United States,
296 Fed.Appx. 740, 741-42 (11th Cir. 2008). Plaintiff has
failed to plead allegations to bring his claims within the
relief that may be accorded by 26 U.S.C. § 7433, and
even if he had, he has failed to demonstrate that he first
complied with and exhausted the statutory administrative
prerequisites to bring such a claim. See Galvez v.
IRS, 448 Fed.Appx. 880, 886 (11th Cir. 2011).
Plaintiff's damages claims are therefore due to be
dismissed without prejudice for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6).
it is hereby
Commissioner's Motion to Dismiss (Doc. 4), which the
Court treats as unopposed, is GRANTED.
Plaintiffs claims for declaratory and injunctive relief are
dismissed without prejudice for lack of subject matter
jurisdiction under Rule 12(b)(1), and plaintiffs claims for
damages are dismissed without prejudice under Rule 12(b)(6)
for failure to state a claim.
Clerk shall close the file.
Although plaintiff's complaint
states he is suing the four IRS employees in their individual
capacities (see Doc. 1 at ¶¶ 4-7), there
are no allegations to support that and the Court therefore
treats his claims as being against them in their official
capacities. The arguments raised in the Commissioner's
motion to dismiss apply to them as well.
While there are some statutory
exceptions, plaintiff has not argued for any of them, and
there are no allegations on the face of his complaint which
suggest any might apply. See 26 U.S.C. §
Here too, plaintiff has not argued that
any exceptions apply and there are no allegations on the face
of his complaint ...