# Smith v. Internal Revenue Service

> District Court, M.D. Pennsylvania · September 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10413607

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN SMITH,

Plaintiff, CIVIL ACTION NO. 3:23-CV-00853

v.
(MEHALCHICK, M.J.)
INTERNAL REVENUE SERVICE,

Defendant.

MEMORANDUM
Presently before the Court is a complaint filed by pro se prisoner-Plaintiff John Smith
(“Smith”) on May 24, 2023, against Defendant the Internal Revenue Service (“IRS”). (Doc.
1). In the complaint, Smith seeks relief related to economic impact payments (“IEPs”)
allegedly owed but not received under the Coronavirus Aid, Relief, and Economic Security
Act (the “CARES”). (Doc. 1, at 1-17). At the time he filed his complaint, Smith was
incarcerated at the State Correctional Institute at Waymart (“SCI-Waymart”). (Doc. 1, at 2).
Having conducted its statutorily-mandated screening of the complaint in accordance
with 28 U.S.C. § 1915A, the Court finds that it lacks jurisdiction to hear the complaint,
however, Smith shall be granted leave to file an amended complaint. (Doc. 1).
I. BACKGROUND AND PROCEDURAL HISTORY
Smith, proceeding pro se, initiated the instant action by filing a complaint and motion
to proceed in forma pauperis on May 24, 2023. (Doc. 1; Doc. 2). On May 26, 2023, the Court
denied Smith’s motion to proceed in forma pauperis for failure to file a certified copy of his
Prisoner Trust Fund Account Statement for the six-month period prior to the initiation of this
civil action. (Doc. 5). On June 9, 2023, Smith filed a renewed motion to proceed in forma
pauperis and a copy of his Prisoner Trust Fund Account Statement. (Doc. 6; Doc. 7).1
In his complaint, Smith alleges he timely filed his 2020 and 2021 tax returns with the
IRD to obtain IEPs. (Doc. 1, at 12). On July 16, 2021, the IRS sent a Form 4883C letter to

Smith, requesting that he verify his identity before the IRS is able to process his income tax
return, issue a refund, or credit any overpayments on his account. (Doc. 1, at 13; Doc. 1-2, at
2). The IRS explained that he can verify his identity in one of three ways: (1) over the phone
by calling; (2) in person by scheduling an appointment at a local IRS office; or (3) through an
authorized representative by completing a Form 284B, Power of Attorney and Declaration of
Representative. (Doc. 1-2, at 2). Smith contends he is not capable of using the methods
provided by the IRS to verify his identity because: (1) he is incarcerated; and (2) the prison
phone system is not available as “it takes hours to get through and the calls on the prison
phones only last 15 minutes before the system hands up.” (Doc. 1, at 13). On November 12,
2021, Unit Manager Karlavage responded to Smith’s Form DC-135A, stating that he sent an

email to the IRS on Smith’s behalf, stating that Smith received the IRS’s letter on July 20,
2021. (Doc. 1, at 14; Doc. 1-3, at 2). On May 6, 2022, the IRS sent a second Form 4883C
letter to Smith, again requesting that he verify his identity using one of the three methods
noted above. (Doc. 1, at 14; Doc. 1-4, at 2-3). Smith alleges “the verification of identity was
again done by Mr. Karlavage.” (Doc. 1, at 14). On June 6, 2022, the IRS sent a third Form
4883C to Smith, against requesting that he verify his identity using one of the three methods
noted above. (Doc. 1, at 14; Doc. 1-5, at 2-4). On June 22, 2022, Unit Counselor Ms. Cush
responded to Smith’s Form DC-135A, stating that he again sent an email to the IRS on

1 The Court will address the motion to proceed in forma pauperis in a separate Order.
Smith’s behalf. (Doc. 1, at 1; Doc. 1-6, at 2). On January 23, 2023, Unit Counselor Mihol
responded to Smith’s Form DC-135A, stating: “On 05/18/2022 Ms. Cush sent the IRS the
verification documents required. At this point there is nothing more I can do. Feel free to
write the IRS for an update.” (Doc. 1, at 15; Doc. 1-7, at 2). On January 12, 2023, Smith sent

a letter to the IRS, stating:
This letter is being written to inquire about the status of my stimulus checks. I
filed the required tax forms and have on two occasions provided your office
with the requested verification of my identity. As of today I have not received
any of the three due checks. Please provide me with correspondence with the
status of these funds and the reason for the delay in processing them. Thank
you for your time and attention to this matter.

(Doc. 1, at 15; Doc. 1-8, at 2).
Smith contends the IRS has not responded to his letter. (Doc. 1, at 15). Finally, Smith asserts
that he requested an administrative claim form, but no response has been received. (Doc. 1,
at 16).
Liberally construing the complaint, Smith asserts the following causes of action:
violation of due process pursuant to the Fifth and Fourteenth Amendments; violation of equal
protection pursuant to the Fourteenth Amendment; and violation of the CARES Act. (Doc.
1). As relief, Smith demands “monetary relief, injunctive relief, declaratory relief, nominal
damages, compensatory damages, punitive damages, $32,000.00, copying fees, $350.01 filing
fee, and other relief this court deems fair necessary and appropriate, any other monetary relief
[Smith] is entitled to due to violations secured by the constitution and statute.” (Doc. 1, at 5).
II. LEGAL STANDARD
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which
a prisoner is seeking redress from a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep’t of Corr., 230 F. App’x 195, 197
(3d Cir. 2007) (not precedential). While such screening should be done “as soon as practicable
after docketing,” the Court is not precluded from conducting such screening after an answer
is filed. See Lair v. Purdy, 84 F. App'x 413, 414 (5th Cir. 2003); Janowski v. Williams, No. 12-
3144 (FLW), 2015 WL 4171727, at *2 n.1 (D.N.J. July 10, 2015) (“A § 1915A dismissal may

be made at any time, before or after service of process and before or after an answer is filed.”
(quoting Loving v. Lea, No. 13-158, 2013 WL 3293655, at *1 (M.D. La. June 28, 2013))). The
Court must dismiss the complaint if it “fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to actions
brought in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii); see generally Banks v. Cty. of
Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation
screening procedures and standards). In this case, because Smith is suing government
officials, 28 U.S.C. § 1915A(b)(1) applies. In performing its mandatory screening function, a
district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of

the Federal Rules of Civil Procedure. Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa.
2010); Banks, 568 F. Supp. 2d at 588.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move
to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first
take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions
which are not entitled to the assumption of truth, and finally determine whether the
complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal
claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule

12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well
as “documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should
“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff
must provide some factual ground for relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal
conclusions’ . . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting
In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor
need the court assume that a plaintiff can prove facts that the plaintiff has not

alleged. Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519,
526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to
a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting
Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in
the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for
which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation
omitted). The plausibility determination is context-specific and does not impose a heightened

pleading requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded
complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to relief
beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of
action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d
at 347 (citing Phillips v. County of Allegheny, 515 F.3d at 224, 233-234 (3d Cir. 2008). Rule 8(a)
requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing
Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is “to be liberally
construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully
pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers”
and can only be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Further, the Third Circuit has instructed
that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be inequitable or futile. Grayson
v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. DISCUSSION
A. SMITH’S CONSTITUTIONAL CLAIMS ARE NOT COGNIZABLE.
In the complaint, Smith names the IRS as the Defendant in this case. (Doc. 1, at 2).

Thus, the Court must address whether the United States has waived sovereign immunity for
claims brought under the CARES Act. The United States, its agencies, and its employees
acting within the scope of their employment cannot be sued without an “unequivocally
expressed” statutory waiver of sovereign immunity. Lane v. Pena, 518 U.S. 187, 192 (1996).
Sovereign immunity extends to agencies of the United States, including the IRS, which is
immune from suit in the absence of Congressional authorization. City of Whittier v. United
States Dep't of Justice, 598 F.2d 561, 562 (9th Cir. 1979). A plaintiff bears the burden of
establishing that a court's exercise of jurisdiction is within the bounds of the Constitution and
authorized by statute. Kokkonen v. Guardian of Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

The complaint cites no statute, and the Court knows of none, that waives sovereign
immunity on the facts of this case against the IRS for alleged violations of Smith’s
constitutional rights to due process and equal protection of the law. Instead, the Court lacks
subject matter jurisdiction over these federal constitutional claims against the United States,
the IRS, or its officials sued in their official capacity. See F.D.I.C. v. Meyer, 510 U.S. 471, 486
(1994) (there is no “direct action for damages against federal agencies”); Cato v. United States,
70 F.3d 1103, 1110-11 (9th Cir. 1995) (no right to a damages remedy against the United States
for alleged constitutional violations). Accordingly, Smith’s claims for damages alleging
violations of his constitutional rights are not cognizable. These claims cannot be cured with
further amendment.
Accordingly, Smith’s constitutional claims are dismissed without prejudice pursuant
to 28 U.S.C. § 1915A(b)(1).
B. SMITH’S TAX REFUND CLAIM FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE
GRANTED.

The complaint does not explicitly attempt to assert a cause of action for tax refund
pursuant to 28 U.S.C. § 1346 and 26 U.S.C. § 7422, and instead only asserts constitutional
claims. Liberally construing the allegations, however, it appears the remedy Smith seeks is
recovery of certain tax refunds in the form of EIPs, which could implicate a cause of action
under 26 U.S.C. § 7422 against the United States if it were adequately pleaded. Accordingly,
the Court will grant Smith an opportunity to amend the complaint to attempt to assert a tax
refund cause of action pursuant to 26 U.S.C. § 7422. For this purpose, the Court provides the
following legal standards and notice of the deficiencies in the complaint.
The CARES Act, codified in part at 26 U.S.C. § 6428, was signed into law on March
27, 2020, as part of the Government's response to the COVID-19 pandemic. The Act
established a mechanism for the IRS to issue EIPs to eligible individuals. Scholl v. Mnuchin
(Scholl I), 489 F.Supp.3d 1008, 1020 (N.D. Cal. 2020), appeal dismissed, No. 20-16915, 2020
WL 9073361 (9th Cir. Nov. 20, 2020). Under the CARES Act, eligible individuals could

receive a “recovery rebate,” structured as a tax credit in the amount of $1,200. 26 U.S.C. §
6428(a). The tax credit was treated as an “advance refund,” meaning qualified individuals
would directly receive the rebate as an economic impact payment or so-called “stimulus
check” when an eligible individual filed a tax return in 2018 or 2019. 26 U.S.C. § 6428(f). The
CARES Act directs the Secretary of the Treasury to issue the credit “as rapidly as possible”
and specifies that no impact payment “shall be made or allowed” after December 31, 2020.
26 U.S.C. § 6428(f)(3)(A).
In essentially identical language, the Consolidated Appropriations Act of 2021
authorized a second tax credit of $600, which was also authorized to be paid as an economic

impact payment. 26 U.S.C. § 6428A(a), (f). Congress again directed the Secretary to issue the
credit “as rapidly as possible” and specified that no impact payment “shall be made or
allowed . . . after January 15, 2021.” 26 U.S.C. § 6428A(f)(3)(A)(i)–(ii). A final tax credit of
$1,400 was authorized under the same circumstances and indicated that “[n]o refund of credit
shall be made or allowed . . . after December 31, 2021.” 26 U.S.C. § 6428B(b), (g)(3). It
appears that Smith seeks a belated stimulus payment.
First, Smith names the IRS as the sole Defendant in this case. (Doc. 1, at 2). Thus, the
Court must again address whether the United States has waived sovereign immunity for
claims brought under the CARES Act. Pursuant to 28 U.S.C. § 1346, the United States
consents to be sued in the district court for refund of taxes. 28 U.S.C. § 1346(a)(1). At this

stage of the proceedings, the Court will assume that the United States has waived sovereign
immunity for claims brought under the CARES Act. See Moffa v. Yellen, No. 1:22-CV-00565,
2022 WL 4134738, at *3 (M.D. Pa. Sept. 12, 2022); Graham v. Dep't of the Treasury Internal
Revenue Serv., No. 21-CV-1411, 2021 WL 5356784, at *2 (E.D. Pa. Nov. 17, 2021); see also
Hudson v. Dep't of Treasury, No. 1:21-CV-392, 2021 WL 5782471, at *2 (W.D. Mich. Dec. 7,
2021); Amandor, et al. v. Mnuchin, 476 F. Supp. 3d 125, 141-45 (D. Md. Aug. 5, 2020); R.V. v.
Mnuchin, Civ. A. No. 20-1148, 2020 WL 3402300, at *5-*7 (D. Md. June 19, 2020).

However, the United States consents to be sued for a tax refund only where the
taxpayer has “duly filed” an administrative claim:
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 . . . 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.

26 U.S.C. § 7422(a).
And further,
[n]o suit or proceeding under section 7422(a) for the recovery of any internal
revenue tax, penalty, or other sum, shall be begun before the expiration of 6
months from the date of filing the claim required under such section unless the
Secretary renders a decision thereon within that time, nor after the expiration
of 2 years from the date of mailing by certified mail or registered mail by the
Secretary to the taxpayer of a notice of the disallowance of the part of the claim
to which the suit or proceeding relates.

26 U.S.C. § 6532(a)(1).
Thus, before filing suit in federal court for credit or refund of overpaid taxes, a taxpayer must
first comply with the tax refund scheme established in the Internal Revenue Code by filing a
timely administrative claim which the IRS either rejects or does not act upon in six months.
See Clintwood Elkhorn Min. Co., 553 U.S. at 4-5.
Treasury Regulations establish additional jurisdictional requirements for claims for tax
refunds. See 26 C.F.R. § 301.6402-2. If the refund claim does not meet the requirements of the
Internal Revenue Code and the regulations, then the suit must be dismissed. Boyd v. U.S., 762
F.2d 1369, 1371 (9th Cir. 1985). The regulations promulgated under 26 U.S.C. § 7422(a) state
a refund claim “must set forth in detail each ground upon which a credit or refund is claimed
and facts sufficient to apprise the Commissioner of the exact basis thereof.” 26 C.F.R. §
301.6402-2(b). In addition, “[t]he statement of the grounds and facts must be verified by a
written declaration that it is made under the penalties of perjury,” or it “will not be considered
for any purpose as a claim for refund or credit.” 26 C.F.R. § 301.6402-2(b).
The refund claim must also be filed with the IRS within the time limits established by
the Internal Revenue Code. The IRS regulations require that an administrative claim be filed
within three years from the time the return was filed or two years from the time the tax was
paid, whichever expires later. See 26 U.S.C. § 6511(a); 26 C.F.R. § 301.6402-2(a). For some

claims, Treasury Regulations require that the refund claim be made on a specific, prescribed
form. 26 C.F.R. § 301.6402-2(c); see also 26 C.F.R. § 301.6402-2(a)(2) (“if a taxpayer is
required to file a claim for credit or refund using a particular form, then the claim, together
with appropriate supporting evidence, shall be filed in a manner consistent with such form,
form instructions, publications, or other guidance . . . .”). Furthermore, the Department of
Treasury regulations state that “no request for damages . . . shall be maintained in any district
court . . . before the earlier of” (i) the date of the administrative decision rendered on that
claim, or (ii) “the date that is six months after the date an administrative claim is filed.” Venen
v. United States, 38 F.3d 100, 103 (3d Cir. 1994), abrogated on other grounds by Hassen v. Gov't of

Virgin Islands, 861 F.3d 108 (3d Cir. 2017); 26 C.F.R. § 301.7426-2(c)(1). The regulations also
provide for an exception “during the last six months of the period of limitations,” where “the
claimant may file an action in a district court . . . any time after the administrative claim is
filed and before the expiration of the period of limitations.” 26 C.F.R. § 301.7426-2(c)(2).
Courts have rejected the argument that a refund action is a necessary prerequisite to
bringing claims under the CARES Act stating, “[b]y its plain language, § 7422(a) does not
apply here because [a claim seeking an advance refund stimulus payment] is not a suit for any
tax, penalty, or sum wrongfully collected.” R.V., 2020 WL 3402300, at *7; King v. Burwell,
759 F.3d 358, 366–67 (4th Cir. 2014) aff'd 135 S. Ct. 2480 (2015) (“Section 7422(a) does not

allow for prospective relief. Instead, it bars [absent exhaustion] suit for the recovery of any
internal revenue tax alleged to have been erroneously or illegally assessed or collected.”); see
also Amandor, 476 F. Supp. 3d at 143-44 (internal quotations and citations omitted) (noting
that requiring the exhaustion of administrative remedies before proceeding with a CARES
Act claim “would be an arduous, expensive, and long process [and] at odds with the very

purpose of the impact payments”); Graham, 2021 WL 5356784, at *2. However, courts have
also stated that claims seeking an EIP tax refund pursuant to 26 U.S.C. § 7422 require
administrative exhaustion. See Davis v. IRS, No. 21-CV-4728, 2022 WL 612718, at *5 (E.D.
Pa. Mar. 1, 2022) (citing Morton v. United States Virgin Islands, No. 21-1292, 2021 WL 6137867,
at *3 n.6 (3d Cir. Dec. 29, 2021); United States v. Williams, 514 U.S. 527, 533 (1995); Clintwood
Elkhorn Min. Co., 553 U.S. at 4 (a taxpayer must first comply with the tax refund scheme
established in the tax code by filing an administrative claim with the IRS before filing suit in
federal court for credit or refund of overpaid taxes)).
Here, Smith alleges that he filed his 2020 and 2021 income tax returns, verified his

identity in accordance with the IRS letters, and requesting an administrative claim form, but
no response has been received. (Doc. 1, at 12-16). However, there is no Form 1040 attached
to the complaint. Nor has Smith provided facts to establish that he authorized anyone to
represent him before the IRS by submitting a complete Form 284B as directed by the IRS in
multiple letters. Smith does not allege facts describing the details asserted in the Form 1040s
and does not attach any documents to support an assertion that he submitted an
administratively-compliant claim with the requirements of 26 C.F.R. § 301.6402-2(b) set forth
above. Therefore, neither the complaint’s allegations nor the attached documents suffice to
show that an administratively-compliant claim was ever made. This is significant because, as

noted, a taxpayer cannot recover in a lawsuit for refund on a different ground than that set
forth in the claim for refund. 26 C.F.R. § 301.6402-2(b); see 26 U.S.C. § 7422(a). Smith can
only sue in this Court based on substantially the same claim as presented to the IRS in a duly
filed administrative claim. Without knowing what information Smith provided in the Form
1040s, the Court cannot conclude that the basic purpose of 26 U.S.C. § 7422(a) is satisfied,

giving the IRS an opportunity to understand and evaluate the specific facts of the claim.
Separately, the letter Smith submitted to the IRS does not constitute a duly filed claim for
purposes of this action because this action was filed on May 24, 2023, less than six months
after he submitted a “written protest” on January 12, 2023. (Doc. 1-8, at 2); see 26 U.S.C. §
6532(a)(1) (“[n]o suit or proceeding under section 7422(a) for the recovery of any internal
revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the
date of filing the claim required under such section unless the Secretary renders a decision
thereon within that time”). Accordingly, the Court finds that even if he had asserted a cause
of action pursuant to 26 U.S.C. § 7422(a) — which he did not — Smith has not alleged
sufficient facts to establish administrative remedies were exhausted and that this Court has

jurisdiction over his tax refund claims.
Accordingly, Smith’s tax refund claim is dismissed without prejudice pursuant to 28
U.S.C. § 1915A(b)(1).
IV. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure
to state a claim, the district court must permit a curative amendment unless an amendment
would be inequitable or futile. Grayson, 293 F.3d at 108. Further, “[a] district court has
‘substantial leeway in deciding whether to grant leave to amend.’” In re Avandia Mktg., Sales
Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d Cir. 2014) (not precedential) (quoting
Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). Here, Smith’s complaint will be dismissed
without prejudice pursuant to 28 U.S.C. § 1915A(b)(1). Specifically, Smith’s claims for
damages alleging violations of his constitutional rights are not cognizable and cannot be cured
with further amendment. However, because the Court cannot say at this time that Smith can

never allege a plausible tax refund claim against the IRS, the dismissal of such claim will be
without prejudice and Smith will be permitted the opportunity to file an amended complaint
against the IRS in the event he can show he has properly exhausted his administrative
remedies by filing an administrative claim.
Smith is advised that the amended complaint must be a pleading that stands by itself
without reference to the original complaint. Young v. Keohane, 809 F. Supp. 1185, 1198
(M.D. Pa. 1992) (emphasis added). The amended complaint must consist of concise and
direct statements alleging which civil rights were violated, and the specific acts that
established each violation. Mere speculation is insufficient. Smith is advised to follow each

claim with a corresponding good-faith request for relief. Further, Smith is cautioned that he
must comply with Rule 8 of the Federal Rules of Civil Procedure and establish at least a
modicum of factual specificity regarding the claims he intends to assert and the factual
grounds upon which they rest. The amended complaint should also be limited to those claims
that arise out of the same transaction or occurrence or series of transactions or occurrences as
averred in the original complaint. Failure to file an amended complaint in accordance with
the aforementioned requirements may result in the dismissal of this action in its entirety.
V. CONCLUSION
For these reasons, the Court finds that Smith’s complaint fails to state a claim upon

which relief can be granted. (Doc. 1). However, the Court grants Smith leave to file an
amended complaint within thirty (30) days from the date of the Order filed concurrently with
this Memorandum Opinion, on or before Monday, October 2, 2023.
An appropriate Order follows.

s/ Karoline Mehalchick
Dated: September 1, 2023
KAROLINE MEHALCHICK
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413607. Public record. Not legal advice.