Fuller v. IRS

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT L. FULLER,

Plaintiff,

v. Case No. 20-CV-01260-SPM

IRS,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

On November 20, 2020, Plaintiff Robert L. Fuller filed a Complaint against the

Internal Revenue Service (“IRS”) in the case at hand (Doc. 1). In the Complaint,

Fuller alleges that after issues with the IRS regarding receipt of his tax filing, which

the IRS considered late, the agency did not provide him with a refund (Doc. 1, p. 5).

Under the amount in controversy, Fuller wrote “4,848 and interest” (Id.). Fuller did

not provide any further explanation of his claim. This case is now before the Court

for consideration of Fuller’s Motion for Leave to Proceed in forma pauperis (“IFP”),

Motion for Recruitment of Counsel, and Motion for Service of Process at Government

Expense (Docs. 2, 3, and 4).

Under 28 U.S.C. § 1915(a)(1), a federal district court may allow a civil case to

proceed without prepayment of fees if the movant “submits an affidavit that includes

a statement of all assets he possesses [showing] that he is unable to pay such fees or

give security therefor.” Fuller appears to be indigent and he has signed his affidavit.

Accordingly, the Motion for IFP is GRANTED.

Fuller’s IFP status does not end the inquiry. Section 1915(e)(2) requires careful

threshold scrutiny of the complaint filed by an IFP plaintiff. The Court must dismiss

any complaint if the allegation of poverty is untrue or if the action is frivolous or

malicious, fails to state a claim upon which relief can be granted, or seeks monetary

relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see

also Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003) (“District judges have

ample authority to dismiss frivolous or transparently defective suits spontaneously,

and thus save everyone time and legal expense.”). Thus, resolution of Fuller’s motion

for IFP requires the undersigned District Judge to closely review the allegations of

his petition.

Fuller’s claim fails this additional level of review. One problem here is that

Fuller’s claim for monetary damages is not explained with any particularity. While

this Court construes pro se complaints liberally, a monetary damages amount along

with a general allegation about a late filing and not receiving a refund, presumably

that he believes he is entitled to, without any further facts, makes the claim less than

plausible. That alone allows the Court to dismiss without prejudice.

But federal tax payments are subject to a broad regulatory scheme which

requires persons challenging an alleged deficiency to adhere to specific procedures

and deadlines. Those include seeking relief from the IRS itself, and then from a

United States Tax Court - not a district court.1 Therefore, the Complaint is also

frivolous in that it fails to engage the Court’s subject matter jurisdiction and should

1 See https://www.irs.gov/newsroom/taxpayer-bill-of-rights-4-the-right-to-challenge-the-irss-

position-and-be-heard-1 (last visited January 5, 2021).

be dismissed with prejudice. Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774

(7th Cir. 2002), cert. denied, 538 U.S. 910 (2003); African-American Slave

Descendants Litig., 471 F.3d 754, 758 (7th Cir. 2006).

For the foregoing reasons, Plaintiff Robert L. Fuller’s Motion for IFP (Doc. 2)

is GRANTED. Additionally, Fuller’s case is DISMISSED with prejudice. As a

result, his Motion for Recruitment of Counsel and Motion for Service of Process at

Government Expense (Docs. 3 and 4) are DENIED as MOOT.

Out of an abundance of caution, the Court advises Fuller as follows. If Fuller

wishes to contest this Order, he has two options. He can ask the Seventh Circuit to

review the Order, or he can first ask the undersigned to reconsider the Order before

appealing to the Seventh Circuit.

If Fuller chooses to go straight to the Seventh Circuit, he must file a notice of

appeal within 60 days from the entry of judgment or order appealed from. FED. R.

APP. P. 4(a)(1)(A). The deadline can be extended for a short time only if Fuller files a

motion showing excusable neglect or good cause for missing the deadline and asking

for an extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also Sherman v. Quinn,

668 F.3d 421, 424 (7th Cir. 2012) (explaining the good cause and excusable neglect

standards); Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807 (7th Cir. 2011)

(explaining the excusable neglect standard).

On the other hand, if Fuller wants to start with the undersigned, he should file

a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).

The motion must be filed within twenty-eight (28) days of the entry of judgment, and

the deadline cannot be extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also

comply with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the

Court should reconsider the judgment. Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir.

2010); Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th Cir. 2001).

See also Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To

prevail on a Rule 59(e) motion to amend judgment, a party must clearly establish (1)

that the court committed a manifest error of law or fact, or (2) that newly discovered

evidence precluded entry of judgment.”) (citation and internal quotation marks

omitted).

So long as the Rule 59(e) motion is in proper form and timely submitted, the

60-day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The

clock will start anew once the undersigned rules on the Rule 59(e) motion. FED. R.

APP. P. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed

outside the 28-day deadline or “completely devoid of substance,” the motion will not

stop the clock for filing a notice of appeal; it will expire 60 days from the entry of

judgment. Carlson v. CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez

v. Trainor, 556 F.2d 818, 819–20 (7th Cir. 1977). Again, this deadline can be extended

only on a written motion by Fuller showing excusable neglect or good cause.

If Fuller chooses to appeal to the Seventh Circuit, he can do so by filing a notice

of appeal in this Court. FED. R. APP. P. 3(a). The current cost of filing an appeal with

the Seventh Circuit is $505.00. The filing fee is due at the time the notice of appeal

is filed. FED. R. APP. P. 3(e). If Fuller cannot afford to pay the entire filing fee up front,

he must file a motion for leave to appeal in forma pauperis (“IFP motion”). See FED.

R. APP. P. 24(a)(1)(C). The IFP motion must set forth the issues Fuller plans to

present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to proceed IFP on

appeal, he will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He will

then be required to make monthly payments until the entire filing fee is paid. 28

U.S.C. § 1915(b)(2).

IT IS SO ORDERED.

DATED: January 5, 2021

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge