Opinion
Case No. 2:18-cv-606-MBS-MGB
09-18-2018
Anthony G. Bryant, Plaintiff, 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 filed this civil action. (DE#1, Complaint). The pro se Plaintiff has filed an Amended Complaint (DE#7). Plaintiff Anthony Bryant is a non-prisoner litigant who is proceeding pro se and in forma pauperis. 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 this case is duplicative of another case filed by the Plaintiff against the same four parties, complaining of the same IRS tax notice, and that this case should be summarily dismissed with prejudice, without issuance and service of process, for the following reasons:
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."); see also Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) (holding that federal district courts may dismiss civil actions 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. March 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) (same).
The Amended Complaint in the present case 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) (dismissing frivolous case), 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 Amended Complaint alleges (verbatim):
Grantees of federal financial assistance cited in external complaint unde[r] 1977 Inspector General Act subjected to Final Rules under 1946 Administrative Procedure Act see all exhibits.(DE# 7 at 5, ¶ III, "Statement of the Claim"). Plaintiff indicates the "basis for jurisdiction" is "IRS Code 6702, 6109, 3949A public corruption, Privacy Act of 1974, 1993 National Voter Registration Act, IRS Section 7345." (Id. at 3, ¶ II.A). Attached are 25 pages of exhibits, including an IRS notice of tax penalty against Plaintiff for filing frivolous tax returns, copies of newspaper articles, notices of public meetings, a Social Security mailing, and an application for an employer identification number ("EIN"), and other documents whose relevance cannot be discerned (DE#7-1). Plaintiffs' allegations are nonsensical and cannot be deciphered. For relief, Plaintiff demands monetary damages, and new EIN and Social Security numbers. (DE# 7 at 5, ¶ IV "Relief").
III. Discussion
This case should be dismissed because it is duplicative of another civil action brought by Anthony Bryant against the same four Defendants, apparently complaining about the same tax deficiency notice sent by the IRS to Plaintiff and his S-Corporation "Bryant Group Inc." See Bryant v. IRS, et al, Case No. 2:18-cv-607-MBS-MGB. In that case, the Magistrate Judge recommended dismissal on the merits because:
Plaintiff Bryant has also 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 Educ., et al, Case No. 2:18-cv-2217-MBS-MGB; and Bryant v. FCC, et al, Case No. 2:18-cv-2467-MBS-MGB.
1) 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); see Hibbs v. Winn, 542 U.S. 88, 90 (2004)(explaining that "the AIA shields federal tax collections from federal-court injunctions");
2) the S-Corporation "Bryant Group Inc." may not proceed pro se (i.e. without legal counsel);
3) the pro se individual Plaintiff (Anthony Bryant) may not litigate on behalf of such corporation, see 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.");The present case (Case No. 2:18-cv-606-MBS-MGB) may be dismissed because it is essentially a duplicate of Bryant v. IRS, et al, Case No. 2:18-cv-607-MBS-MGB. The present case is subject to dismissal for most of the same reasons, except that Bryant has not named his S-Corporation in the present suit.
4) the Amended Complaint fails to state any sort of plausible claim that would be cognizable in federal court;
5) the Amended Complaint is nonsensical and frivolous;
6) Plaintiff's claims for damages against federal agencies (and federal officials in their official capacity) are subject to dismissal based on sovereign immunity;
7) Plaintiff's claims for monetary damages against prosecutors in their individual capacity (for their official actions as prosecutors) are subject to dismissal based on prosecutorial immunity; and
8) the deficiencies of the Amended Complaint cannot be remedied by more specific pleading.
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.
"[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, 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.
IV. Conclusion
Review of the Amended Complaint reflects multiple grounds for summary dismissal. The present case is duplicative of another case pending in this case, Bryant v. IRS, et al, Case No. 2:18-cv-607-MBS-MGB. In the present case, Plaintiff sues that same four federal Defendants. Although Plaintiff's allegations are largely nonsensical, he appears to be complaining about the same tax notice as in Case No. 2:18-cv-607-MBS-MGB. For all these reasons, summary dismissal is appropriate.
V. Recommendation
Accordingly, the Magistrate Judge recommends that the Amended Complaint (DE# 7) should be summarily dismissed with prejudice, and without issuance and service of process.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE September 18, 2018
Charleston, South Carolina 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).