Davis v. McClain

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PATRICIA K. DAVIS,

Plaintiff,

v. Case No. 2:19-cv-3466

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

JEFF MCCLAIN, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Patricia K. Davis, an Ohio resident proceeding without the assistance of

counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. All judicial officers who render

services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).

This matter is also before the Court for the initial screen of Plaintiff’s Complaint under

28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that the Court DISMISS this action for failure to state a claim upon

which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which

provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

Further, to properly state a claim upon which relief may be granted, a plaintiff must

satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil

Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under

Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the

Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)

(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has

limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.

Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989)).

II.

In her Complaint, Plaintiff identifies herself as “one of the Sovereign people who hold all

political power according to Art., Sec. 2 of the Ohio constitution.” (Compl. ¶ 5, ECF No. 1-1.)

As such, Plaintiff alleges, she “may keep the fruits of her labor without taxation.” (Id. at ¶ 7.)

Plaintiff names individuals who work for the Ohio Department of Taxation and the Internal

Revenue Service (“IRS”) as defendants, alleging that their collection of taxes or attempts to

collect taxes violate various provisions of the United States Constitution. Plaintiff attaches

notices from the Ohio Department of Taxation and the IRS to her Complaint.

Plaintiff’s Complaint appears to be asserting some form of a “sovereign citizen” claim.

The United States Court of Appeals offered the following description of the sovereign-citizen

movement:

The “sovereign citizen” movement is a highly disperse, antigovernment

movement. Tax protesting or tax defiance seems to be a logical consequence of the

movement’s beliefs. In general, sovereign citizens believe that the United States

Government, including the IRS, is a fraud and that they, the sovereign citizens,

retain an individual common law identity exempting them from the authority of

those fraudulent government institutions.

United States v. Gooch, 595 F. App’x 524, 527 n.1 (6th Cir. 2014) (internal quotation marks and

citation omitted) see also United States v. Alexio, CR Nos. 13-01017 JMS, 13-01018 JMS, 2015

WL 4069160, at *2 (D. Haw. July 2, 2015) (quoting Gravatt v. United States, 100 Fed. Cl. 279,

282 (2011)) (“Adherents of such claims or defenses ‘believe that they are not subject to

government authority and employ various tactics in an attempt to, among other things, avoid

paying taxes, extinguish debts, and derail criminal proceedings.’”).

Courts have routinely found sovereign-citizen arguments to be “frivolous and a waste of

court resources.” Payne v. Kida, No. 15-cv-14127, 2016 WL 491847 at *4 (E.D. Mich. Jan. 6,

2016), report and recommendation adopted, No. 15-CV-14127, 2016 WL 465486 (E.D. Mich.

Feb. 8, 2016) (collecting cases); Kinstle v. Bunting, No. 3:13CV998, 2016 WL 3668027, at *4

(N.D. Ohio July 11, 2016) (collecting cases). Moreover, courts have rejected the particular

sovereign-citizen type of claim Plaintiff appears to advance here, namely, that her status as a

sovereign citizen relieves her of her obligation to pay taxes. See, e.g., United States v. Mundt, 29

F.3d 233, 237 (6th Cir. 1994) (dismissing “free sovereign” type of arguments in a federal tax

case as “completely without merit” and “patently frivolous”); see also Cheek v. United States,

498 U.S. 192, 199 (1991) (rejecting the sovereign-citizens’ movement’s belief in the

unconstitutionality of income taxation); cf. United States v. Coleman, 871 F.3d 470, 476 (6th Cir.

2017) (“Defendant’s legal arguments directly correspond to meritless rhetoric frequently

espoused by tax protesters, sovereign citizens, and self-proclaimed Moorish-Americans.”).

For these reasons, the undersigned finds Plaintiff’s Complaint to be frivolous and thus

RECOMMENDS that this action be DISMISSED pursuant to § 1915(e)(2).

III.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No. 1) is GRANTED.

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS Plaintiff’s

Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE