# (PC) Bullard v. Internal Revenue Service > District Court, E.D. California · November 2, 2022 URL: https://www.frixlaw.com/law-library/cases/10048261 ## Case - **Court:** District Court, E.D. California - **Decided:** November 2, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10048261 ## How later opinions describe it (automated extraction) - holding that while leave to amend shall be freely given, the 16 court does not have to allow futile amendments ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONDELL CHRISTOPHER BULLARD, No. 2:22-cv-1535 DAD DB PS 12 Plaintiff, 13 v. ORDER 14 INTERNAL REVENUE SERVICE, 15 Defendant. 16 17 Plaintiff Rondell Christopher Bullard is proceeding in this action pro se. This matter was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 Pending before the Court are plaintiff’s complaint and motion to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff seeks assistance in receiving 21 funds from the Internal Revenue Service. 22 The Court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 25 below, plaintiff’s complaint will be dismissed with leave to amend. 26 I. Plaintiff’s Application to Proceed In Forma Pauperis 27 Plaintiff’s in forma pauperis application makes the financial showing required by 28 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 1 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 2 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 3 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 4 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 5 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 6 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 8 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 9 District Court to examine any application for leave to proceed in forma pauperis to determine 10 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 11 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 12 Moreover, the Court must dismiss an in forma pauperis case at any time if the allegation 13 of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails 14 to state a claim on which relief may be granted, or seeks monetary relief against an immune 15 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 16 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 17 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 18 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 19 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 20 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 21 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 22 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 23 true the material allegations in the complaint and construes the allegations in the light most 24 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 25 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 26 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 27 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 28 //// 1 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 2 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 3 The minimum requirements for a civil complaint in federal court are as follows: 4 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 5 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 6 judgment for the relief the pleader seeks. 7 Fed. R. Civ. P. 8(a). 8 II. Plaintiff’s Complaint 9 Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that 10 plaintiff is entitled to relief. In this regard, the complaint alleges that when plaintiff was a minor, 11 plaintiff “was awarded a sum of money due to a doctor’s malpractice injury,” and those funds 12 were managed by plaintiff’s mother. (Compl. (ECF No. 1) at 1.) Plaintiff’s mother is now 13 deceased and plaintiff cannot obtain information about the account because plaintiff does not 14 know the account details or plaintiff’s mother’s social security number. (Id. at 1-2.) Plaintiff 15 alleges that the defendant “tax half of” the account and asks that the Court “make sure my money 16 don’t get took[.]” (Id. at 1.) 17 While it is clear that plaintiff has concerns regarding a financial account, it is entirely 18 unclear what plaintiff is alleging the defendant did wrong. In this regard, although the Federal 19 Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant 20 fair notice of the plaintiff’s claims and must allege facts that state the elements of each claim 21 plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 22 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic 23 recitation of the elements of cause of action will not do.’ Nor does a complaint suffice if it 24 tenders ‘naked assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556 25 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at 26 least some degree of particularity overt acts which the defendants engaged in that support the 27 plaintiff’s claims. Jones, 733 F.2d at 649. 28 //// 1 Plaintiff is advised that 26 U.S.C. § 7433(a) provides that: 2 If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service 3 recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, 4 such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 5 6 However, such an action must “be brought only within 2 years after the date the right of action 7 accrues.” 26 U.S.C. § 7433(d)(3). Here, it appears from the complaint that plaintiff’s claims date 8 back to 2010. (Compl. (ECF No. 1) at 1.) 9 II. Leave to Amend 10 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 11 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 12 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 13 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 14 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 15 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 16 court does not have to allow futile amendments). 17 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 18 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 19 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 20 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 21 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 22 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 23 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 24 1988)). 25 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend 26 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 27 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 28 an amended complaint “the tenet that a court must accept as true all of the allegations contained 1 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 2 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 3 “While legal conclusions can provide the complaint’s framework, they must be supported by 4 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 5 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 6 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 7 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 8 in itself without reference to prior pleadings. The amended complaint will supersede the original 9 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 10 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 11 and identified in the body of the complaint, and each claim and the involvement of each 12 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 13 must also include concise but complete factual allegations describing the conduct and events 14 which underlie plaintiff’s claims. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The complaint filed August 30, 2022 (ECF No. 1) is dismissed with leave to 18 amend. 19 2. Within twenty-eight days from the date of this order, an amended complaint shall be 20 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 21 Procedure and the Local Rules of Practice.1 The amended complaint must bear the case number 22 assigned to this action and must be titled “Amended Complaint.” 23 //// 24 //// 25 //// 26 //// 27 1 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. 1 3. Failure to comply with this order in a timely manner may result in a recommendation 2 that this action be dismissed.2 3 DATED: November 1, 2022 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Plaintiff need not file another application to proceed in forma pauperis at this time unless 28 plaintiff’s financial condition has improved since the last such application was submitted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10048261. Public record. Not legal advice.