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Rivers v. Brohl

United States District Court, District of Colorado

May 13, 2015

BERNARD KENNETH RIVERS, JR.-EL, Plaintiff,
v.
BARBARA BROHL, Executive Director of the Colorado Department of Revenue in her individual capacity, Defendant.

ORDER DISMISSING CASE

LEWIS T. BABCOCK, Senior Judge United States District Court

Plaintiff, Bernard Kenneth Rivers, Jr.-El, currently resides in Greeley, Colorado. Plaintiff initiated this action by filing pro se a Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed Pursuant without Prepayment of Costs. Plaintiff has been granted leave to proceed pursuant to § 1915 (ECF No. 6).

A. Mandatory Screening Provision and Standard of Review

Pertinent to the case at bar is the authority granted to federal courts for sua sponte screening and dismissal of certain claims. In this regard, Title 28 of the United States Code, section 1915, establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Plaintiff has been granted leave to proceed IFP in this action (ECF No. 6). Thus, his Complaint must be reviewed under the authority set forth above.

A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Bell Atlantic Corp., 550 U.S. at 555. When reviewing a complaint for failure to state a claim, the Court may also consider documents attached to the complaint as exhibits. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (internal citation omitted). Moreover, a legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989). See also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that a court may dismiss a claim as factually frivolous if the facts alleged are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional).

The Court must construe the Complaint liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, [a court] should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate. See Id. It is not the Court's duty to search voluminous pages of gibberish for statements which may support a claim or a remedy. See Gross v. Burggraf Construction Co., 53 F.3d 1531, 1546 (10th Cir. 1995). A pro se litigant must comply with the fundamental requirements of the Federal Rules of Civil Procedure and plaintiff's pro se status does not entitle him to application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002) (Plaintiff's “difficulties are those faced by many plaintiffs who nonetheless manage to file suit in a timely manner.”). Sua sponte dismissal is proper when it is patently obvious that plaintiff could not prevail on the facts alleged and it would be futile to allow the plaintiff to amend. Andrews v. Heaton, 483 F.3d 1070, 1074 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir. 2001) (internal quotations omitted).

For the reasons stated below, the Complaint and the action will be dismissed pursuant to the screening authority set forth above.

B. Plaintiff’s Allegations and Claims

In his first claim, Plaintiff alleges that, on February 6, 2015, he received a Notice of Deficiency or Rejection of Refund Claim from the Colorado Department of Revenue (the Department) for payment due on Plaintiff’s Individual Income Tax for the year ending December 31, 2011 (ECF No. 1, p. 7) (Deficiency Notice). Plaintiff claims that, in accordance with the Deficiency Notice and Colorado Statute 39-21-103, he filed a Protest within thirty days of the mailing of the Deficiency Notice by faxing his Protest to the Department. He further complains that he received a Notice of Final Determination and Demand for Payment for $801.00 due on his 2011 Individual Income Tax, which he received from the Department on March 25, 2015 (ECF No. 1, p. 6) (Final Notice). The Final Notice indicates that the Department did not receive his Protest. He claims that Defendant violated his right to procedural due process by failing to file his timely Protest. He further claims that Defendant violated his right to substantive due process by failing to send him the Final Notice by certified mail.

While not entirely clear, in his second claim, Plaintiff appears to take issue with his Drivers License and asserts causes of action for breach of contract and fraud. He seeks equitable relief in the form of contract reformation to cancel the “fraudulent” drivers permit for not following state laws C.R.S. §§ 4-1-308, 4-2-302. He seeks equitable relief to have the State expunge all of his driving records.

C. Plaintiff’s Tax Claim

Plaintiff lacks standing to challenge the Department’s collection of Colorado state income tax in this federal forum pursuant to the Tax Injunction Act (the TIA), 28 U.S.C. § 1341. The TIA forbids federal courts from exercising jurisdiction over certain kinds of claims involving state taxation, stating, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Id. The Colorado process for notice of deficiency, requirement of timely protest, executive director hearing, and de novo judicial review in a State district court has been determined to satisfy due process, providing the taxpayer with a plain, speedy and adequate remedy for a full and fair opportunity to challenge both the amount of tax and any irregularities in the process at Revenue. Liebhardt v. Department of Revenue, 229 P.2d 655, 657–59 (1951). The TIA is first and foremost a vehicle “to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.” Arkansas v. Farm Credit Serv., 520 U.S. 821, 826 (1997) (quoting Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 522 (1981)). The TIA “reflects a congressional concern to confine federal court intervention in state government.” Arkansas v. Farm Credit Svc., 520 U.S. at 826–27.

Here, Plaintiff could have filed an appeal from the Final Notice in the County District Court within thirty days after the mailing of the determination. C.R.S. 39-21-105(1). His failure to do so does not lift the preclusion provision of the TIA. ...


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