Lovo v. Internal Revenue Serv.

CRISTIAN YOVANI HERNANDEZ LOVO, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant

No. 1:22-cv-00220-AWI-SAB

United States District Court, E.D. California

May 5, 2022

SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE A FIRST AMENDED COMPLAINT (ECF No. 1) THIRTY DAY DEADLINE

Cristian Yovani Hernandez Lovo (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action on February 22, 2022, pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff is currently incarcerated at Northlake Correctional Facility in Baldwin Michigan.^[1] On February 24, 2022, the Court denied Plaintiff's application to proceed in forma pauperis and required Plaintiff to file an amended application. (ECF No. 3.) On March 21, 2022, the Court granted Plaintiff's renewed application to proceed in forma pauperis. (ECF No. 5.) On April 12, 2022, the order granting Plaintiff's application was resent to the correctional institution, and on April 18, 2022, the Clerk of the Court cleared Plaintiff's in forma pauperis status. Accordingly, Plaintiff's complaint, filed on February 22 2022, is currently before the Court for screening.

I. SCREENING REQUIREMENT

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fail[] to state a claim on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

In reviewing a pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (“where the petitioner is pro se, particularly in civil rights cases, [courts should] construe the pleadings liberally and . . . afford the petitioner the benefit of any doubt.”); United States v. Qazi, 975 F.3d 989, 992-93 (9th Cir. 2020) (“It is an entrenched principle that pro se filings however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.”) (citations and internal quotations omitted).

To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

II. COMPLAINT ALLEGATIONS

Plaintiff filed this complaint while incarcerated. Plaintiff is not challenging his conditions of confinement. The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915.

Plaintiff names the Internal Revenue Service (“IRS”) as the only Defendant in this action. (Compl. 2, ^[2] ECF No. 1.)

Plaintiff identifies Fresno County as the county of residence of the Defendant IRS. (Compl. 2; ECF No. 1-1 at 1.) The cover sheet states Plaintiff brings this action pursuant to 28 U.S.C. §§ 1361, 1331; 5 U.S.C. § 706, and the CARES Act. (Id.)

Plaintiff claims that in March of 2021, he filed a 1040 tax return for 2019 and 2020 in order to receive EIP CARES Act assistance checks, and Plaintiff has not received such payments nor any response from the IRS despite repeated requests for a response to the IRS. (Compl. 5.) Plaintiff requests a response regarding the checks and outstanding funds; and requests issuance of one check for $1, 400 and another for $1, 800. (Compl. 6.)

III. DISCUSSION

A. Venue in the Eastern District of California

Plaintiff is currently incarcerated in Michigan. It is not clear why Plaintiff has filed this action in the Eastern District of California, however, given the allegation that the IRS is located in Fresno, California, it is possible he received a notification issued from an office in Fresno, California, or previously had some connection to the area at the time his taxes were filed.

Plaintiff is informed that under the express provisions of 28 U.S.C. § 1402(a)(1), the proper venue for a claim for a federal tax refund lies only in the judicial district in which the Plaintiff resides, and there is no allegation within the face of the complaint demonstrating that venue is proper. See 28 U.S.C.§ 1346(a)(1)-(2) (“The district courts shall have original jurisdiction . . . of . . . [a]ny civil action against the United States for the recovery of any internalrevenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws . . .[and] [a]ny other civil action or claim against the United States, not exceeding $10, 000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department.”); 28 U.S.C. § 1402 (“Any civil action in a district court against the United States under subsection (a) of section 1346 of this title may be prosecuted only . . . [e]xcept as provided in paragraph (2), in the judicial district where the plaintiff resides.”)^[3]; Hanson v. I.R.S., No. CIV. 91-1304-FR, 1991 WL 57014, at *1 (D. Or. Apr. 11, 1991) (“Under the express provisions of 28 U.S.C. § 1402(a)(1), the proper venue for a claim for a federal tax refund lies only in the judicial district in which the plaintiffs reside.”); 26 U.S.C. § 7422(a) (“No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary.”); Scheafnocker v. Comm'r, No. CIV.S052002DFLPANGGH, 2006 WL 2166718, at *4 (E.D. Cal. June 21, 2006) (“[T]he instant case involves the IRS' levy upon the bank account of a third party to pay the taxes of another and may therefore be pursued as a refund action pursuant to 28 U.S.C. § 1346(a)(1) (authorizing civil actions against the United States for the recovery of wrongfully assessed or collected internal revenue taxes), and presumably 26 U.S.C. § 7422(a) (authorizing civil actions on refund or credit claims). Under these provisions, venue is proper ‘in the judicial district where the plaintiff resides,' 28 U.S.C. 1402(a)(1), and the action may be filed within two years after an adverse administrative decision, 26 U.S.C. § 6532(a)(1).”), report and recommendation adopted, No. S-05-2002 DFLPANGGH, 2007 WL 954740 (E.D. Cal. Mar. 29, 2007).

Based on the face of the complaint, Plaintiff has not established that the Eastern District of California is the proper venue for this action. However, even if the Court were to presume venue is proper, the Court finds Plaintiff's complaint is deficient as presented for additional reasons. Plaintiff is instructed to consider whether venue is appropriate in this District, as well as the below legal standards, if he chooses to file an amended complaint.

B. The CARES Act and Similar Statutory and Regulatory Provisions

The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), codified in part at Section 6428 of the Internal Revenue Code, 26 U.S.C. § 6428, establishes a mechanism for the IRS to issue economic impact payments (“EIPs”) to eligible individuals in the form of a tax credit. Scholl v. Mnuchin (Scholl I), 489 F.Supp.3d 1008, 1020 (N.D. Cal. 2020), appeal dismissed, No. 20-16915, 2020 WL 9073361 (9th Cir. Nov. 20, 2020). Plaintiff only specifically references the CARES Act in the complaint, however, there are related statutes and provisions that provide for EIPs. See Wilson v. Dep't of Treasury Internal Revenue Serv., No. 121CV01051NONEEPG, 2021 WL 4306312, at *2 (E.D. Cal. Sept. 22, 2021) (“Three Federal Acts are implicated in this action: the [CARES Act]; the Consolidated Appropriations Act, 2021 (CAA), passed on December 27, 2020, Pub. L. 116-260, 134 Stat. 1182 (2020); and the American Rescue Plan Act of 2021 (ARPA), passed on March 11, 2021, Pub. L. 117-2, 135 Stat. 4.”). Each of these acts provided for EIPs (or advanced refunds) to be issued to “eligible individuals]”: $1200.00 under the CARES Act, 26 U.S.C. § 6428(a)-(d); $600 under the CAA, 26 U.S.C. § 6428A(a)-(d); and $1400.00 under the ARPA, 26 U.S.C. § 6428B(a)-(d).” Id.

The Court will first focus its discussion on the claim as presented under the CARES Act, however, Plaintiff's complaint would fail to...