United States District Court, E.D. North Carolina, Northern Division
MELVIN P. WHITE, JR., Plaintiff,
UNITED STATES INTERNAL REVENUE SERVICE, Defendant.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter comes before the court on frivolity review of
plaintiff's pro se complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge Robert T. Numbers, II, entered
memorandum and recommendation (“M&R”),
wherein it is recommended that the court dismiss
plaintiff's complaint. Plaintiff timely filed objections
to the M&R. In this posture, the issues raised are ripe
for ruling. For the following, the court adopts the M&R,
and dismisses the action with prejudice.
commenced this action with a motion for leave to proceed in
forma pauperis on February 28, 2019, accompanied by proposed
complaint and several exhibits. Plaintiff seeks to bring a
tax refund action and Bivens claim against the Internal
Revenue Service (“IRS”). Plaintiff alleges that
on February 9, 2009, he submitted prior year federal
individual income tax returns to the IRS for 1987, 1988,
1991, 1996, 1997, and 2004. Three months later, the IRS
disallowed plaintiff's claims, totaling $8,
720.00. The IRS explained in a letter to plaintiff
that the statute of limitations barred his claim for a
refund. Plaintiff also alleges that the IRS violated his
Fourth Amendment rights.
initial frivolity review, the magistrate judge recommended
dismissal of plaintiff's claims. With respect to
plaintiff's tax refund claims, the magistrate judge
concluded that the statute of limitations barred relief.
Citing United States Supreme Court precedent, the magistrate
judge also held that Bivens does not create an
implied cause of action against federal agencies. Plaintiff
objects to each portion of the M&R.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may
dismiss an action that 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
complaint may be found frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Additionally, a
complaint fails to state a claim if it does not
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” sufficient to “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). In evaluating
whether a claim has been stated, “[the] court accepts
all well-pled facts as true and construes those facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement [, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted).
paying taxes to the IRS and exhausting their administrative
remedies, taxpayers may bring a civil action for refund in
this court. 26 U.S.C. § 7422(a); 28 U.S.C. §
1346(a)(1). “Claim for credit or refund of an
overpayment of any tax . . . shall be filed by the taxpayer
within 3 years from the time the return was filed or 2 years
from the time the tax was paid, whichever of such periods
expires the later” 26 U.S.C. § 6511(a). If the
taxpayer does not file a return, the statute of limitations
is “within 2 years from the time the tax was
paid.” Id. § 6511(a).
2009, plaintiff filed his claim for refund of tax
overpayments in 1987, 1988, 1991, 1996, 1997, and 2004. Upon
de novo review of plaintiff's complaint and supporting
documents, the court concludes that plaintiff's refund
claim is barred by the statute of limitations and must be
dismissed. Cf. Zieg v. United States, 849 F.2d 898,
901 (4th Cir. 1988) (“One who so thoroughly sleeps on
his rights is not entitled to so much protection.”).
to plaintiff s Fourth Amendment seizure claim, a plaintiff
“is entitled to recover money damages for any injuries
he has suffered as a result of [federal agents']
violation of the [Fourth] Amendment.” Bivens,
403 U.S. at 397. However, a Bivens action is not
available against federal agencies such as the IRS. See