DEVRIES v. HAMMER, (W.D.Mich. 1999)

David W. McKeague, United States District Judge.

This is a civil action brought pro se against a revenue officer of the United States. Plaintiff's one-page complaint charges defendant, Judith M. Hammer, with fraud and extortion arising from a letter from defendant to plaintiff sent in March of 1997. Defendant's letter, attached to the complaint as Exhibit A, appears to be a form letter used by the Internal Revenue Service to respond to inquiries from "tax protesters." The letter states that the Service does not respond to inquiries "of the type you have written" on a point-by-point basis, and goes on to explain that income taxes are authorized by the Sixteenth Amendment to the United States Constitution and the Internal Revenue Code. Plaintiff's complaint asserts that defendant's letter is false and fraudulent and seeks relief pursuant to 26 U.S.C. § 7214, which punishes acts of fraud and extortion by employees of the IRS.

Defendant, represented by the United States of America, has moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Plaintiff has submitted a "memorandum in rebuttal" (docket # 10), in which he reasserts his charge of fraud and confirms that the basis for his claim is defendant's letter. Plaintiff's memorandum goes on to explain that he is a sovereign citizen of the Republic of Michigan and is not subject to the jurisdiction of the United States of America. Upon review, the court determines that plaintiff's complaint is utterly frivolous and that defendant's motion should be granted.

Defendant has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). The standards applicable to a motion to dismiss are well settled. Under Rule 12(b)(6), a complaint may be dismissed only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. See Lawrence v. Chancery Court of Tennessee, 188 F.3d 687, 691 (6th Cir. 1999); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998); Ludwig v. Board of Trustees, 123 F.3d 404, 408 (6th Cir. 1997); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The court must construe the complaint in the light most favorable to plaintiff, accept all factual allegations as true, and determine whether it is established beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.

Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995); Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. See Advocacy Org. for Patients and Providers. v. Auto Club Ins. Ass'n, 176 F.3d 315, 319 (6th Cir. 1999); Nelson v. Miller, 170 F.3d 641, 649 (6th Cir. 1999). The court need not accept as true legal conclusions or unwarranted factual inferences. Murphy v. Sofamor Danek Group, Inc. (In re Sofamor), 123 F.3d 394, 400 (6th Cir. 1997) (quoting Morgan, 829 F.2d at 12). "In practice, a '. . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Columbia Natural Resources, Inc. v. Tatum, 518 F.3d at 1109 (quoting Allard v. Weitzman (In re DeLorean Motor Co), 991 F.2d 1236, 1240 (6th Cir. 1993)); see Hahn v. Star Bank, No. 98-3680, ___ F.3d ___, 1999 WL 681702, at *9 (6th Cir. Sept. 2, 1999). Further, as plaintiff is proceeding pro se, the complaint must be given a liberal reading, and is not held to the standard applicable to complaints drafted by trained legal counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Applying these standards, the court concludes that defendant's motion must be granted.

The asserted basis for plaintiff's claim is violation of 26 U.S.C. § 7214. That statute criminalizes certain acts of fraud and extortion committed by revenue officers or agents. Generally, a private citizen has no authority to initiate a federal criminal prosecution. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989). Only the United States has authority to enforce the criminal laws. Furthermore, criminal statutes do not create private rights of action, unless Congress so provides. Cosentino, 876 F.2d at 2. 26 U.S.C. § 7214 does not create a private right of action. See Purk v. United States, 747 F. Supp. 1243, 1248 (S.D.Ohio 1989); see also Culbertson v. Unknown US. Agents, No. 91-cv-40437-FL, 1992 WL 739051, at *1 (E.D.Mich. Oct. 23, 1992); cf., Johnson v. Cullen, 925 F. Supp. 244, 251 (D.Del. 1996) (no private cause of action for related section 7206). Consequently, the complaint fails to state a claim upon which relief can be granted under 26 U.S.C. § 7214.

Reading plaintiff's complaint with the liberality accorded pro se submissions, the court surmises that plaintiff may be attempting to bring a claim for violation of his constitutional rights against the revenue officer pursuant to the theory of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action is generally available to seek redress against a federal officer for violation of constitutional rights. A major exception, however, applies to suits against officers of the Internal Revenue Service.

The Sixth Circuit has held that Congress has created an exclusive remedy for reckless or intentional torts committed by employees of the IRS. Fishburn v. Brown, 125 F.3d 979, 982 (6th Cir. 1997). That remedy is created by 26 U.S.C. § 7433, and the only appropriate defendant is the United States of America. The court in Fishburn held that the exclusive remedy provision of section 7433 precludes the maintenance of a Bivens action against an individual revenue officer. 125 F.3d at 983.

Furthermore, even if this court had authority to entertain a claim against defendants for violation of plaintiff's constitutional rights, plaintiff has utterly failed to plead a viable claim. His contention that defendant's form letter, Exhibit A to the complaint, is fraudulent or extortionate transcends the frivolous. The letter was general in nature and merely informed plaintiff of the constitutional and statutory sources of authority for the levying of a national income tax. Plaintiff's arguments in support of his contention that the letter somehow violated his constitutional rights are meritless.

Similarly outlandish is plaintiff's contention, often rejected by the federal courts, that he is a citizen only of the State of Michigan and is not subject to the jurisdiction of the federal government. See, e.g., United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994).

Plaintiff's complaint, which seeks redress against a revenue officer for the mailing of a form letter, does not state any actionable claim upon which relief can be granted. The court will therefore grant defendant's motion to dismiss.

David W. McKeague, United States District Judge.

In accordance with the opinion filed this date:

IT IS ORDERED that defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) (docket # 8) be and hereby is GRANTED.

IT IS FURTHER ORDERED that plaintiff's complaint be and hereby is DISMISSED WITH PREJUDICE and that judgment is entered on behalf of defendant.