The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALICIA A. EPPS, Case No. 1:22-cv-609
Plaintiff,
Dlott, J.
vs. Litkovitz, M.J.
UNITED STATES OF AMERICA, et al.,
Defendants. REPORT AND
RECOMMENDATION
Plaintiff, a resident of Cincinnati, Ohio, has filed a pro se civil complaint against the
United States of America and the Department of the Treasury. (Doc. 3). By separate Order,
plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This matter is now before the Court for a sua sponte review of the complaint to determine
whether the complaint or any portion of it should be dismissed because it 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. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C.
§ 1915(e)(2)(B).
Screening of Complaint
A. Legal Standard
In enacting the original in forma pauperis statute, 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.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the
plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke, 490
U.S. at 328-29; see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action
has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action
has no arguable factual basis when the allegations are delusional or rise to the level of the
irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The
Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing
a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting
Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint filed
by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however,
the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
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pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
B. Plaintiff’s Complaint
Plaintiff brings this action against the United States of America and the Department of
the Treasury, Internal Revenue Service (IRS) alleging that the IRS has withheld her stimulus
checks in violation of her statutory and constitutional rights. Plaintiff alleges she is an eligible
individual who is entitled to a $1,200 stimulus check under the Coronavirus Aid, Relief, and
Economic Security (“CARES”) Act (Pub. L. 116-136, 134 Stat. 281 (2020)), 26 U.S.C. §
6428(a); a $600 stimulus check under the Consolidated Appropriations Act (“CAA”) (Pub. L.
116-260, 134 Stat. 1182 (2020)), 26 U.S.C. § 6428A(a); and a $1,400 stimulus check under the
American Rescue Plan Act (“ARPA”) (Pub. L. 117-2, 135 Stat. 4 (2021)), 26 U.S.C. § 6428B(b).
Plaintiff alleges that when she did not receive the stimulus checks, she contacted the IRS.
Plaintiff received a letter from the IRS advising her to take steps to verify her identity. (Doc. 3,
Exh. A). Plaintiff states she completed the process and was advised she would receive the
stimulus checks. However, plaintiff never received the checks. Months later, plaintiff again
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contacted the IRS and was told she would not receive any stimulus checks because she owed a
debt to the IRS from 2013. Plaintiff alleges this debt “has been settled already.” (Doc. 1-2 at
PAGEID 9).
Plaintiff seeks declaratory and monetary relief.
C. Resolution
The CARES Act provides a tax credit for eligible individuals in the form of an advance
refund on 2020 income taxes. 26 U.S.C. § 6428(a), (f). The CAA and ARPA provide similar
tax credits in the form of an advance refund for 2020 and 2021, respectively. 26 U.S.C. §
6428A(a), (f); § 6428B(a), (g).
The United States has waived its sovereign immunity with respect to tax-refund lawsuits
in the district courts. 28 U.S.C. § 1346(a). However, the United States consents to be sued for
a tax refund only where the taxpayer has complied with the administrative claim requirement set
forth in 26 U.S.C. § 7422(a):
No suit or proceeding shall be maintained in any court for the recovery of any
internal revenue tax alleged to have been erroneously or illegally assessed or
collected, or of any penalty claimed to have been collected . . ., until a claim for
refund or credit has been duly filed with the Secretary, according to the provisions
of law in that regard, and the regulations of the Secretary established in pursuance
thereof.
(emphasis added).
Before filing suit in federal court for a credit or refund, a plaintiff must demonstrate that
she filed an administrative claim with the IRS. See Little v. Internal Revenue Serv., No. A-21-
cv-446, 2021 WL 2418013, at *2 (W.D. Tex. June 14, 2021) (failure to file an administrative
claim seeking CARES Act stimulus checks dismissed without prejudice for failure to file
administrative claim as required by section 7422(a)), report and recommendation adopted, 2021
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WL 9494505 (W.D. Tex. Aug. 27, 2021) (citing United States v. Clintwood Elkhorn Mining.
Co., 553 U.S. 1, 4 (2008); 26 U.S.C. § 7422(a)). See also Taylor v. Internal Revenue Serv., No.
1:22-cv-27, 2022 WL 4545121, at *3 (S.D. Miss. Sept. 28, 2022) (same).
In response to a previous Court order, plaintiff states she has not filed an administrative
refund claim under § 7422(a) of the Internal Revenue Code before she filed this lawsuit. (Doc.
5). Because plaintiff alleges she has not filed an administrative claim as required by § 7422(a)
of the Internal Revenue Code, she has not exhausted her administrative remedies, and the Court
lacks jurisdiction over plaintiffs request for a tax refund at this time.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for want of
jurisdiction.
2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,
803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).
Date: 11/28/2022 Hern Xe XethewZ-
Karen L. Litkovitz, Magistrate Judge
United States District Court
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALICIA A. EPPS, Case No. 1:22-cv-609
Plaintiff,
Dlott, J.
vs. Litkovitz, M.J.
UNITED STATES OF AMERICA, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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