United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter is before the Court on: (a) Defendant United
States' Motion to Dismiss Plaintiff Wayne Brown's
complaint (Doc. 13); (b) Plaintiff's Motion for Summary
Judgment (Doc. 14); (c) Plaintiff's Objection to Court
Granting Extension to Defendant (Doc. 17); and (d) Plaintiffs
Request for Admission (second motion) (Docs. 21, 22.) For the
reasons expressed below, the Court GRANTS
Defendant's Motion to Dismiss (Doc. 13), DENIES
as moot Plaintiff's Motion for Summary Judgment
(Doc. 14), OVERRULES Plaintiff's
Objection to Court Granting Extension to Defendant (Doc. 17),
and STRIKES Plaintiffs Request for
Admission. (Docs. 21, 22.)
filed his complaint pro se against the United
States, the Internal Revenue Service (“IRS”), the
District Court, and the Sixth Circuit, on April 21, 2016.
(Doc. 1.) Plaintiff amended his complaint on May 4, 2016.
(Doc. 2.) But this litigation did not begin here.
sued the United States, Department of Treasury, and the IRS
in August 2014 following a mix-up with his 2010 tax refund.
(“Brown I, ” Case No. 14-cv-1142, Doc. 1
(Watson, J.).) In March 2011, the IRS had mistakenly issued
him a tax refund that was $15, 000 more than he was due.
(Id. at 1.) In an attempt to correct the error, in
July 2012, the IRS sent Plaintiff an “Intent to Levy
Notice” which stated that the IRS may levy
Plaintiff's state tax refund if he did not call the IRS
immediately or pay back the $15, 000 plus interest. Brown
alleged that in sending this Intent to Levy Notice, the IRS
improperly assessed the erroneous refund as a “rebate
category B overstated” payment rather than a
“non-rebate category D misapplied” payment.
called the IRS and offered to pay $50 per month, but the IRS
insisted that Brown pay $210 per month. Brown made payments
from August 2012 until November 2013. In May 2013 and
November 2013, he requested hearings with the IRS to
challenge the levy, which the IRS denied.
complained that the IRS's actions in attempting to
collect the erroneous refund via levy violated the Internal
Revenue Code (“IRC”), and sought damages under 26
U.S.C. § 7433, which provides a remedy to taxpayers for
certain IRS actions that violate the IRC. He also sought
damages for alleged violations of his Fifth Amendment rights
when the IRS denied his hearing requests.
for Brown, in addition to granting a private right of action
for certain violations, 26 U.S.C. § 7433 also contained
a statute of limitations. 26 U.S.C. § 7433(d)(3). The
government filed a motion for judgment on the pleadings on
statute of limitations grounds, which this Court granted.
(Brown I, Doc. 39, at 9 (finding that “the
actions of which plaintiff complains all constitute the same
alleged wrong-wrongful collection of the erroneous refund via
levy.”).) The Court also found that Brown's Fifth
Amendment claim failed because “collection via levy has
been upheld as not in violation of the Due Process Clause so
long as an adequate opportunity exists for post-seizure
review, ” which “need not involve a
hearing.” (Id. at 10 (internal quotation
appealed, and sought to proceed in forma pauperis, which
motion Judge Watson denied. (Id. at Doc. 43) The
Sixth Circuit also declined to grant Brown's motion to
appeal in forma pauperis because, “[f]or the reasons
stated by the district court, Brown's complaint lacks an
arguable basis in law and an appeal in this case would be
frivolous.” (Id. at Doc. 44.) The Sixth
Circuit ordered Brown to pay the filing fee for his appeal.
Brown failed to pay the fee, and the Sixth Circuit dismissed
his case for want of prosecution on May 6, 2016.
(Id. at Doc. 45.)
April 21, 2016, Brown sued the IRS again, and added as
defendants the Department of Justice, the District Court and
the Sixth Circuit. (Doc. 1.) He amended his complaint on May
4, 2016. (Doc. 2.) Construed liberally, the amended complaint
seeks compensatory damages of $2 million for the following
actions of the IRS: (a) “intentionally chang[ing] [his]
erroneous non rebate misapplied estimated tax payment refund
and ma[king] it a rebate-overstatement estimated tax payment
refund;” (b) failing to issue a notice of deficiency,
which it should have done had the IRS properly characterized
his refund; and (c) declining to allow him a hearing after he
filed his administrative claims in May 2015, “based on
a fraudulent statement.” (Id.) These actions,
according to Brown, constituted fraud, fraudulent
concealment, false statements, conspiracy to violate
Brown's due process rights, retaliation, threatening, and
violations of Brown's First, Fifth, and Fourteenth
Amendments to the United States Constitution.
the additional defendants, he does not appear to state any
causes of action. Rather, he criticizes this Court for
dismissing his claims on statute of limitations grounds, and
he criticizes the Sixth Circuit for declining to allow him to
proceed in forma pauperis because his appeal had no basis in
law or fact. (Doc. 2 at 3-4.)
United States filed its Motion to Dismiss on September 26,
2016. (Doc. 13.) Brown never filed a response. Instead, on
October 7, 2016, Brown moved for summary judgment, although
his Motion for Summary Judgment appears to address some of
the arguments made in the government's Motion to Dismiss.
(Doc. 14.) The United States moved to extend its time to
respond to Plaintiff's Motion for Summary Judgment,
seeking first a ruling on its Motion to Dismiss, (Doc. 15),
which the Magistrate Judge granted in November 2016. (Doc.
16.) In December, Brown objected to the Magistrate
Judge's Order granting the extension, (Doc. 17), and in
February, he filed for the Recusal of the Magistrate Judge
and this Court (Doc. 20). The government did not respond to
either the objection or the motion for recusal, and the time
for responding has passed. In March, Brown filed a letter,
(Doc. 21), which the Court will liberally construe as a
memorandum in support of his motion for request for admission
(second motion) (Doc. 22). The government did not respond to
Brown's motion, and the time for responding has passed.
Therefore, all of the above motions, with the exception of
Brown's Motion for Summary Judgment, are ripe for review.
UNITED STATES' MOTION TO DISMISS
government seeks to dismiss Brown's complaint on the
grounds of collateral estoppel and res judicata because his
claims were already adjudicated in Brown I. (Doc.
13-1 at 1.) While Brown did not file a formal response to the
government's motion, his Motion for Summary Judgment
argues against the government's Motion to Dismiss. (Doc.
14.) In it, he argues against the application of collateral
estoppel and res judicata because Brown I focused on
the Intent to Levy Notice and what ...