CARTER v. MNUCHIN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHAEL RAY CARTER, )

)

Plaintiff, )

)

v. ) 1:19-cv-00450

)

STEVEN TERNER MNUCHIN, U.S. )

SECRETARY OF TREASURY and )

RONALD G. PENNY, SECRETARY OF )

THE NORTH CAROLINA DEPARTMENT )

OF REVENUE, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court are the Defendants’ motions to dismiss for

lack of subject-matter jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(1) and failure to state a claim upon which

relief can be granted pursuant to Rule 12(b)(6). For the reasons

set forth below, Defendants’ motions will be granted and the

complaint will be dismissed.

I. BACKGROUND

Plaintiff Michael Ray Carter, proceeding pro se, sues Steven

Terner Mnuchin, United States Secretary of the Treasury, and Ronald

G. Penny, Secretary of the North Carolina Department of Revenue,

in connection with a dispute over his taxes. Although the

allegations of Carter’s complaint are not entirely clear, he seeks

“an injunction from the court to stop current wage garnishment

efforts so that he will not be further damaged until Defendant[s]

correct their records,” as well as “supervisory action processing

his tax returns.” (Doc. 1 at 5.) According to the complaint,

Carter began demanding payment of “lawful money” and using such

demands to reduce his federal adjusted gross income on his tax

forms in in 2012. (Id. at 4.) He claims that these deductions

reduced his income such that he does not owe state income taxes.

(Id.) The Internal Revenue Service (“IRS”) has continued to seek

the taxes it contends Carter owes. Carter’s employer has been

instructed by the North Carolina Department of Revenue to begin

garnishing his wages to recover his taxes. It is not clear from

the complaint whether the wage garnishment is intended to satisfy

state or federal taxes. Regardless, Carter seeks an injunction to

end these garnishment efforts. (Id. at 5.)

The United States, on behalf of Secretary Mnuchin, and

Secretary Penny filed separate motions to dismiss. (Docs. 7, 8,

12.) The court issued Carter a Roseboro notice1 for each filed

motion, indicating that he had a right to file a 20-page response

and that his failure to do so would likely result in his case being

dismissed. (Docs. 10, 14.) In response to the first Roseboro

notice, Carter filed a supplement to his complaint containing

copies of his tax returns for 2017 and 2018, as well as copies of

1 See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

the IRS’s notice of penalty charges with “REFUSED FOR CAUSE”

written on them –- presumably by Carter himself. (Doc. 11.)

Carter did not attach any reply brief and provided no additional

legal argument to these supplemental documents. He has filed no

response to the Defendants’ motions to dismiss since then, and the

time for doing so has expired.

II. ANALYSIS

A. Legal Standard

Even though Defendants’ motions to dismiss are unopposed and

can ordinarily be granted on that basis, see Local Rule 7.3(k),

the court must satisfy itself that the motions are merited. See

Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D. 438,

448 (M.D.N.C. 2005); see also Custer v. Pan Am. Life Ins. Co., 12

F.3d 410, 416 (4th Cir. 1993). Federal Rule of Civil Procedure

8(a)(2) provides that a complaint must contain a short and plain

statement of the claim showing that the pleader is entitled to

relief. Under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). When

a defendant argues that a complaint fails to allege any facts

establishing subject-matter jurisdiction, a 12(b)(1) motion to

dismiss for lack of subject-matter jurisdiction is evaluated under

the same standard of review as a 12(b)(6) motion to dismiss. Adams

v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Carter is proceeding

pro se and is entitled to a liberal construction of his pleading;

however, this does not mean the court may ignore clear defects in

pleading, Bustos v. Chamberlain, No. 3:09-1760-HMH-JRM, 2009 WL

2782238, at *2 (D.S.C. Aug. 27, 2009), nor may it “conjure up

questions never squarely presented in the complaint.” Brice v.

Jenkins, 489 F. Supp. 2d 538, 541 (E.D. Va. 2007) (internal

quotation marks and citation omitted).

B. United States

The United States first contends that it, not its officers

and employees, is the proper defendant in this action. The

Government is correct. Thus, Secretary Mnuchin is not a proper

defendant here. Coble v. Wilkins, No. 1:11-cv-211, 2012 WL 665976,

at *1 (M.D.N.C. Feb. 29, 2012), adopted by Coble v. Wilkins, 2012

WL 1450047 (M.D.N.C. Mar. 20, 2012), aff’d, 475 F. App’x 17 (4th

Cir. 2012) (per curiam) (unpublished opinion).

The United States argues that Carter’s claim to prevent the

collection of taxes is barred by the Anti-Injunction act, 26 U.S.C.

§ 7421(a).2 That section establishes that, except under certain

situations not at issue here, “no suit for the purpose of

restraining the assessment or collection of any tax shall be

maintained in any court . . . .” 26 U.S.C § 7421(a).3 The court

clearly lacks jurisdiction insofar as Carter seeks to stop the

federal government’s efforts to recover his tax payments. Judicial

Watch, Inc. v. Rossotti, 317 F.3d 401, 405 (4th Cir. 2003) (“The

effect of the [Anti-Injunction] Act is simple and obvious: courts

lack jurisdiction to issue injunctive relief in suits seeking to

restrain the assessment or collection of taxes.”) Therefore,

Carter’s claims against the United States will be dismissed for

lack of jurisdiction.

C. North Carolina

Defendant Penny seeks dismissal of Carter’s claims under

similar grounds. He correctly argues that Carter’s claim should

be construed as an official capacity claim and thus one against

the State of North Carolina itself. Fordham v. Keller, No. 1:13-

2 The United States initially interprets Carter’s complaint as seeking

a tax refund and argues that Carter has not met the requirements for

such an action under 26 U.S.C. § 7422. Although the court does not read

his claim in this way (Doc. 1 at 5), to the extent Carter seeks a refund,

he has not shown he has complied with the relevant statutory provisions

such that the United States can be considered to have waived sovereign

immunity. The court therefore lacks jurisdiction to decide this claim.

3 Although the United States makes this argument pursuant to Rule

12(b)(6), this court has interpreted arguments under 26 U.S.C. § 7421(a)

as jurisdictional and therefore considers the argument under Rule

12(b)(1). See Carter v. Lew, No. 1:13-cv-220, 2013 WL 7019149, at *1

(M.D.N.C. Oct. 22, 2013).

cv-617, 2017 WL 1091876, at *8 (M.D.N.C. Mar. 22, 2017). The

Eleventh Amendment prohibits actions in federal court by

individuals against a state unless either the state has waived

immunity or Congress has abrogated immunity. See Ballenger v.

Owens, 352 F.3d 842, 844–45 (4th Cir. 2003). Nowhere in his

complaint does Carter allege a waiver of immunity by the State or

an abrogation of immunity by Congress. Any claims against the

State must therefore be dismissed as a matter of law because

sovereign immunity bars Carter’s claims.

III. CONCLUSION

For the reasons stated, the court finds that it lacks

jurisdiction to decide Carter’s claims.

IT IS THEREFORE ORDERED that the Penny’s motion to dismiss

(Doc. 7) and the United States’ motion to dismiss (Doc. 12) are

GRANTED, and the complaint is DISMISSED WITHOUT PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

October 29, 2019