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Diamond v. Internal Revenue Service

United States District Court, S.D. Alabama, Southern Division

November 25, 2019

COREY L. DIAMOND, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on Plaintiff's one-page pro se complaint (Doc. 1), which contains a request to proceed without prepayment of fees and costs (see Id. (“I do not have money to pay for fee[s] or costs[.]”)). This matter has been referred to the undersigned for pretrial disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(S). Because Diamond's complaint contains a request for leave to proceed without prepayment of costs and fees (Doc. 1, at 1), this Court has the obligation to undertake a review of his complaint pursuant to the provisions of 28 U.S.C. § 1915(e). That statute instructs courts to dismiss any action when it is determined that an in forma pauperis applicant's suit is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Upon consideration of Plaintiff's Complaint, it is recommended that this action be DISMISSED WITHOUT PREJUDICE, prior to service of process, because this Court lacks subject matter jurisdiction over a suit against the Internal Revenue Service (“IRS”)-the IRS is not an entity that can be sued-and even treating this action as one against the United States, Plaintiff has failed to state a claim upon which relief may be granted. [1]

         BRIEF BACKGROUND

         On November 19, 2019, the pro se Plaintiff filed what he presumably intended to be a complaint-although the document is not designated as such-against the IRS. (Doc. 1). The entirety of Plaintiff's allegations consist of the following:

I irs had took my kid[s] and said they was not mine to money for me form 2013-2019 send it to the SSA for unemployment compensation got proof and did not go by the book they was using so I a[m] asking for a relief of 200, 000 and there are 3 IRS page USA.gov, IRS.com, white, orange, blue one I send the information to the U.S. FBI get information U.S. FBI and you will see what they did.

(Id.).

         DISCUSSION

         The Court in this case applies clearly-established law that “the IRS cannot be sued in its own name because it is not an agency permitted by Congress to be sued eo nomine.” Price v. I.R.S., 2002 WL 1058154, *1 (S.D. Ala. Apr. 11, 2002) (citations omitted); see also Hedley v. I.R.S., 2011 WL 4073788, *2 (N.D.Ga. Jan. 7, 2011) (recognizing the IRS “cannot be sued directly[]”); McLaurine v. Mid South Restaurants, Inc., 2007 WL 1893318, *4 (M.D. Ala. Apr. 23, 2007) (“The IRS argues, correctly, that it cannot be sued as an individual entity.”); Brewer v. Commissioner, Internal Revenue, 435 F.Supp.2d 1174, 1178 (S.D. Ala. 2006) (“[T]he IRS is not an entity that can be sued.”); Johnson v. I.R.S., 2005 WL 6272919, *3 (S.D. Ga. Sept. 30, 2005) (“Congress has not designated . . . the IRS as [a] bod[y] corporate and has not authorized [it] to be sued.”). As a result, this Court cannot exercise subject-matter jurisdiction in a suit brought against the IRS. See Pace v. Platt, 2002 WL 32098709, *3 (N.D. Fla. Sept. 10, 2002), aff'd, 67 Fed.Appx. 584 (11th Cir. Apr. 24, 2003).

         In addition, even upon treating this action as one against the United States, see Brewer, supra, at 1178 (“The proper approach when the IRS is sued is to treat the action as one brought against the United States.”), the case must be dismissed prior to service because Diamond's complaint fails to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

         To survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

         Federal Rule of Civil Procedure 8(a) further provides that in order to state a claim for relief, a pleading must contain:

(1) a short and plain statement of the grounds of the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or ...

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