Opinion
Case No. 2:18-cv-607-MBS-MGB
09-18-2018
Anthony G. Bryant, and Bryant Group, Inc., Plaintiffs, v. Internal Revenue Service, Beth Drake, US Attorney for the District of South Carolina, U.S. Department of Housing and Urban Development, and Attorney General of United States, Defendants.
REPORT AND RECOMMENDATION
Anthony G. Bryant and Bryant Group, Inc. ("Plaintiffs") have filed this civil action. (DE#1, Complaint). The pro se Plaintiffs filed an Amended Complaint (DE#9). Plaintiff Anthony Bryant is a non-prisoner litigant who is proceeding pro se and in forma pauperis. As for the corporate Plaintiff, this Court has given repeated extensions of time for the Bryant Group Inc. to obtain counsel, but no counsel has entered an appearance. (DE# 7, 17, 32, Orders). Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(D.S.C.), the United States Magistrate Judge is authorized to review the record and to submit findings and recommendations to the United States District Judge. Upon review, the Magistrate Judge recommends that the Amended Complaint should be summarily dismissed with prejudice, without issuance and service of process, for the following reasons:
Exhibits attached to the Complaint indicate that the Bryant Group, Inc. is an S-Corporation owned by Anthony G. Bryant. (See DE# 1-2). In order to proceed in federal court, a corporation must have legal counsel who enters an appearance.
I. Relevant Law
A. Liberal Construction
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
B. In Forma Pauperis Review
Upon application, an indigent litigant may commence an action "in forma pauperis" in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action 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). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke v. Williams, 490 U.S. 319, 326 (1989). "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Id.
C. Inherent Authority to Dismiss Frivolous Case
The United States Supreme Court has observed that federal district courts possess inherent authority to dismiss a frivolous case. See Mallard v. United States District Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) ... authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) (holding that federal district courts may dismiss claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit"). Consistent with such authority, the Fourth Circuit Court of Appeals has held that "frivolous complaints are subject to summary dismissal pursuant to the inherent authority of the court." Ross v. Baron, 493 F.App'x 405, 406 (4th Cir. Aug. 22, 2012); and see, e.g., Cabbill v. United States, Case No. 1:14-cv-4122-JMC-PJG, 2015 WL 6905072, *5 (D.S.C. Nov. 9, 2015) (same), appeal dism'd, 2016 WL 1085106 (4th Cir. Mar. 21, 2016); Anderson v. Patterson, Case No. 6:16-761-MGL-JDA, 2016 WL 1743095 (D.S.C. April 12, 2016), adopted, 2016 WL 1732763 (D.S.C. May 2, 2016). "A suit is frivolous if it lacks an arguable basis in law or fact." Neitzke, 490 U.S. at 325; McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009).
The present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See e.g., Carter v. Ervin, Case No. 0:14-cv-865-TLW-PJG, 2014 WL 2468351, *3 (D.S.C. June 2, 2014), appeal dism'd, 585 F.App'x 98 (4th Cir. 2014); Mayhew v. Duffy, Case No. 2:14-cv-24-RMG-BM, 2014 WL 468938, *1, fn.1 (D.S.C. Feb. 4, 2014) (exercising inherent authority to summarily dismiss a frivolous case).
II. Background
The allegations of the initial Complaint were indecipherable and consisted of disjointed phrases that failed to state any sort of coherent claim. The "Statement of the Claim" consisted of the following (verbatim):
Internal Revenue Code 6702, 6109, Internal Revenue Service assigned identity protection 2012 - 2016 PIN for you. Notice 2014 PIN 131835 2010 Justice Department Inspector General mentioned Homeland Security and Federal Bureau of Investigation.(DE# 1 at 6, ¶ III "Statement of Claim"). For relief, the Plaintiffs stated (verbatim):
Comment to Commission on Law Enforcement Agencies Inc. Charleston Coun[t]y Sheriffs Office City of Charleston SC Police Department Notice Internal Revenue SC Vice Notice 6702 actual or punitive money damages see all attachments from 1989-2018.(DE# 1 at 6, ¶ IV, "Relief").
Plaintiffs attached two sets of documents that shed no light on these indecipherable allegations. (DE# 1-1, 63 pages; DE#1-2, 18 pages). The attached documents included a 2016 letter from the Sheriff's Department regarding Plaintiff Anthony Bryant's comments at a Public Information Session (DE# 1-1 at 1); a 2012 response by the Berkeley County Legal Department to his FOIA request, indicating that such request was vague and lacked a specific description, and therefore no responsive documents could be identified (at 3); pages of the "South Carolina Emergency Solutions Grants Program (at 4-8); a copy of a newspaper article about homelessness (at 9); a response to a FOIA request (at 10-11); a letter response from Senator Tim Scott indicating that the Office of the National Ombudsman had reviewed information submitted by Plaintiff Anthony Bryant and concluded that "his complaint is not a Federal regulatory enforcement or compliance matter" (at 12-13); a 2012 letter from the South Carolina Department of Revenue (at 14); a letter from Plaintiff Anthony Bryant to the South Carolina Insurance Commission (at 25-26); a letter from the South Carolina Department of Labor, Licensing, and Regulation indicating that it was "unable to determine from your five -page letter what information you are requesting" (at 30); a certificate indicating that Anthony Bryant is a notary public (at 33); a copy of an email indicating that a "Federal Executive Association Stakeholders Reception" would have ham biscuits and hot coffee available (at 50); a joint public notice from 2013 regarding The Boeing Company's application for a permit to excavate (at 51); a newspaper article about plans for a new SLED crime lab (at 60); a page of IRS PIN instructions (DE#1-2 at 1-2); an IRS notice to Plaintiff Anthony Bryant of "Civil penalty for Frivolous Tax Returns" for tax period December 31, 2014 (at 3-4); and numerous other documents whose significance cannot be discerned.
This Court issued a Proper Form Order (DE#5) and gave an extension of time for the corporate Plaintiff to obtain counsel. The Plaintiffs then filed an Amended Complaint (DE# 9). For the "Statement of the Claim," the Plaintiffs indicate (verbatim):
$205,371 Justice Department, HUD and EPA 1977 Inspector General complaint grantors and grantees 2010 letter mentioning Homeland Security 22 Federal Agencies filed 3949A Public corruption."(DE# 9 at 5, ¶ III). Plaintiffs indicate the "basis for jurisdiction" is "IRS Code 6702, 6109, Section 41403 Violence against Women, Runaway Homeless Assistance Act FOIA DEA ATF." (Id. at 3, ¶ II.A). Attached are seven pages of exhibits, including an IRS notice of tax penalty for filing frivolous returns, a copy of a newspaper article referring to the Bryant Group as a "consulting firm," a copy of the articles of incorporation, and an application for an employer identification number ("EIN") for a company listed as "Port City Services" (DE#9-1). Liberally construed, the Amended Complaint may be complaining about an IRS notice of tax deficiency issued to the Plaintiffs for filling frivolous tax returns. (DE#9-1, attached exhibits). For relief, Plaintiffs demand (verbatim): "$425,000 damages New EIN #2012 IRS ID theft Domestic Abuse on Ninth Circuit Scarlett Wilson and Beth Drake US Attorney of South Carolina maligning my company Bryant Group Inc." (DE# 9 at 5, ¶ IV "Relief").
III. Discussion
Review of the Complaint reflects multiple reasons for summary dismissal.
A. Plaintiffs cannot enjoin tax collection by means of this lawsuit
Plaintiffs have attached an IRS notice of $5,000 tax penalty to the Amended Complaint (see DE#9-1 at 1, "Notice CP215"). The IRS notice is addressed to the Bryant Group, Inc. c/o Anthony Bryant. (Id.). If the Plaintiffs' Amended Complaint is liberally construed as attempting to enjoin an IRS tax penalty imposed on Anthony Bryant and/or his S-Corporation, such attempt is not cognizable here. The Anti-Injunction Act ("AIA") bars courts from entertaining a suit brought "for the purpose of restraining the assessment or collection of any [federal] tax." 26 U.S.C. § 7421(a) (entitled "Prohibition of suits to restrain assessment or collection"); and see Hibbs v. Winn, 542 U.S. 88, 90 (June 14, 2004) (explaining that the AIA addresses "the Government's need to assess and collect taxes expeditiously with a minimum of pre-enforcement judicial interference; and it requires that the legal right to disputed sums be determined in a refund suit.").
In Hibbs, the United States Supreme Court succinctly stated that "the AIA shields federal tax collections from federal-court injunctions." Id., 542 U.S. at 90. "Congress directed taxpayers to pursue refund suits instead of attempting to restrain collections." Id.; see also Nauflett v. Comm'r of Internal Revenue, 892 F.3d 649 (4th Cir. June 14, 2018) (explaining that the United States Tax Court has jurisdiction over a taxpayer's attempt to halt a collection action, but only when the taxpayer files a timely petition for review, citing I.R.C. § § 6015(e)(1)(A)).
B. The corporate Plaintiff (Bryant Group Inc.) may not proceed pro se
The S-Corporation "Bryant Group Inc." may not proceed pro se (i.e. without legal counsel) in the present action. The pro se individual Plaintiff (Anthony Bryant) may not litigate on behalf of such corporation. The federal statute governing appearances in federal court permits an individual to proceed pro se, but does not authorize a pro se individual to appear on behalf of a corporation. 28 U.S.C.A. § 1654 ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."). It is well-settled that a layperson may not represent a corporation in which he is the sole shareholder, a limited liability company of which he is the sole member, or a partnership where he is a partner. See Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) ("The rule that a corporation may litigate only through a duly licensed attorney is venerable and widespread."); Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 133 (2d Cir. 2009) (same). In other words, a pro se litigant generally may not represent anyone but himself in federal court. See Stoddard v. District of Columbia Pub. Def. Servs., 535 F.Supp.2d 116 (D.D.C. 2008). A pro se plaintiff may not pursue claims that belong to a corporation, regardless of whether the corporation has assigned its claims to the plaintiff. Jones, 722 F.2d at 22-23 (affirming dismissal where pro se non-attorney claimed that a corporation had assigned its claims to him); Sanchez v. Walentin, 526 F.App'x 49, 2013 WL 2420838 (2nd Cir. June 5, 2013) (same).
C. Failure to State a Claim and Frivolity
Even liberally construing the allegations of the Amended Complaint, it is difficult, if not impossible, to discern any actual claims. The Fourth Circuit Court of Appeals has emphasized that "[p]rinciples requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278. The attached exhibits shed no light on the Amended Complaint, and no relevance can be discerned regarding any significance they might have to this case. The Amended Complaint fails to state any sort of plausible claim that would be cognizable in federal court. Given that the Amended Complaint is incomprehensible, it may also properly be deemed frivolous. See Denton, 504 U.S. at 31; Neitzke, 490 U.S. at 326.
C. This case is duplicative
The record reflects another reason for summary dismissal. The present action appears to be duplicative of another action pending against the same parties in this Court. See Bryant v. IRS, et al, Case No. 2:18-cv-606-MBS-MGB. The Fourth Circuit Court of Appeals has held that "district courts are not required to entertain duplicative or redundant lawsuits." Cottle v. Bell, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000)(per curiam)(citing with approval, Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992) ("district courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party"); see also Southern Holdings, Inc. v. Horry Cty., South Carolina, Case No. 4:02-1859-RBH, 2014 WL 11071017, *6 (D.S.C. June 11, 2014) ("the many previous grounds argued ... are simply duplicative"). "Generally, a lawsuit is duplicative of another one if the parties, issues and available relief do not significantly differ between the two." Cottle, 2000 WL 1144623 at *1.
In fact, Plaintiff has filed at least four other federal lawsuits naming various federal agencies as defendants. Those pending cases include Bryant v. EPA, et al, Case No. 2:18-cv-1436-MBS-MGB; Bryant v. U.S. Dept. of Transportation, et al, Case No. 2:18-cv-2159-MBS-MGB; Bryant v. U.S. Dept. of Education, et al, Case No. 2:18-cv-2217-MBS-MGB; and Bryant v. FCC, et al, Case No. 2:18-cv-2467-MBS-MGB. Like the present case, the allegations in those other cases appear to be disconnected nonsensical fragments that state no claim of any kind.
"[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous or malicious." Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974, *6 (D.S.C. July 28, 2015) ("the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency"), affirmed, 631 F.App'x 197 (4th Cir. Feb. 4, 2016); see also Cox v. Cartledge, Case No. 3:13-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013), adopted, 2013 WL 1401674 (D.S.C. April 8, 2013) (same); Sherron v. Perry, 2016 WL 407303, *2 (W.D.N.C. Feb. 2, 2016) (same).
The Fourth Circuit Court of Appeals has instructed that "because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e)." Cottle, 2000 WL 1144623 at *1; see also Sifford v. Drew, Case No. 8:17-3210-RMG-JDA, 2018 WL 1155985, *3 (D.S.C. Feb. 7, 2018) (same), adopted, 2018 WL 1157778 (D.S.C. Feb. 28, 2018); Wilkins v. Harley, Case No. 6:11-cv-3463-MBS-KFM, 2012 WL 256566, *2 (D.S.C. Jan. 12, 2012) ("this duplicate § 1983 Complaint is frivolous and subject to summary dismissal"), adopted, 2012 WL 260159 (D.S.C. Jan. 27, 2012); Witherspoon v. Matthews, Case No. 9:17-20-MGL-BM, 2017 WL 3283855, *5 (D.S.C. July 14, 2017), adopted, 2017 WL 3263939 (D.S.C. Aug. 1, 2017) (same); Reynolds v. Third Circuit Pub. Def. Office, Case No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted, 2018 WL 1124592 (D.S.C. Mar. 1, 2018) (summarily dismissing duplicate case as frivolous); Preacely v. City of N.Y., 622 F.App'x 14 (2d Cir. 2015) (affirming sua sponte dismissal of frivolous complaint). Summary dismissal is appropriate.
D. Sovereign Immunity
The Amended Complaint names several federal agencies (the IRS and U.S. Department of Housing and Urban Development) and several federal officials (U.S. Attorney and Attorney General) as defendants. A claim for damages is not actionable against the United States, federal agencies, or public officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 486 (1994); Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999) (explaining that "Bivens does not allow for recovery of money damages, or suits in general, against the government itself"); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (same).
Plaintiff may not sue the United States or its agencies without their consent. FDIC, 510 U.S. at 484-86 (finding that suit against federal agency could not proceed); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (same); Global Mail Ltd. v. U.S. Postal Service, 142 F.3d 208, 210 (4th Cir. 1998) (federal agency is entitled to sovereign immunity unless Congress waives immunity and consents to suit); Estate of Riopedre v. United States, Case No. 8:12-2806-BHH-JDA, 2015 WL 505584, *14 n.7 (D.S.C. Feb. 6, 2015) (same). Sovereign immunity deprives this court of jurisdiction to proceed on such claims. Global Mail, 142 F.3d at 210; United States v. Jones, 225 F.3d 468, 469 (4th Cir. 2000), cert. denied, 532 U.S. 1053 (2001). Even if any plausible claims could be discerned here, any claims for damages against the federal agencies and officials in their official capacity would be subject to dismissal based on sovereign immunity. Such deficiency in the Amended Complaint cannot be remedied by more specific pleading. Adams v. Rice, 40 F.3d 72, 76 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995).
E. Prosecutorial Immunity
Plaintiff names several prosecutors as defendants, but states no claims against them. If Plaintiff is complaining about any actions taken by them when performing their prosecutorial duties, any claim against the prosecutors in their individual capacity is subject to dismissal. The United States Supreme Court has held prosecutors are immune from claims for monetary damages for acts taken in their prosecutorial role. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) ("[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his [or her] role as an advocate for the State, are entitled to the protections of absolute immunity."); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (holding that prosecutors have immunity for performing functions "intimately associated with the judicial phase of the criminal process"); Nivens v. Gilchrist, 444 F.3d 237, 249-50 (4th Cir. 2006) (same), cert dism'd, 548 U.S. 939 (2006); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000) (holding that prosecutor was entitled to absolute immunity); Redden v. McMaster, Case No. 8:08-2845-CMC-BHH, 2008 WL 4458877, *3 (D.S.C. Sept. 29, 2008) (prosecutors "have absolute immunity for activities in or connected with judicial proceedings"), aff'd, 313 F.App'x 654 (4th Cir. 2009).
IV. Conclusion
Review of the Complaint reflects multiple grounds for summary dismissal. The Plaintiffs may not enjoin an IRS tax notice by means of this lawsuit. The corporate Plaintiff may not proceed pro se (i.e. without counsel). The Complaint fails to state a claim for which relief may be granted and is frivolous. To the extent Plaintiffs are seeking monetary damages, federal agencies and federal officials in their official capacity are protected by sovereign immunity from such relief. Prosecutors in their individual capacities are protected by prosecutorial immunity for performing their official duties. Further amendment would not cure the legal deficiencies of the Amended Complaint. Summary dismissal is appropriate.
V. Recommendation
Accordingly, the Magistrate Judge recommends that the Complaint (DE# 1) should be summarily dismissed with prejudice, and without issuance and service of process.
IT IS SO RECOMMENDED. September 18, 2018
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE Plaintiff's attention is directed to the Important Warning on the following page:
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).