United States District Court, D. Colorado
JEFFREY T. MAEHR, Plaintiff,
JOHN KOSKINEN, Commissioner of Internal Revenue, JOHN VENCATO, Revenue Agent, GINGER WRAY, Revenue Agent, GARY MURPHY, Revenue Agent, WELLS FARGO BANK, NA, Defendants.
A. BRIMMER United States District Judge.
matter is before the Court on the Recommendation of the
United States Magistrate Judge [Docket No. 67] filed on
February 20, 2018. The magistrate judge recommends that the
Court dismiss plaintiff's claims against both Wells Fargo
Bank, NA, and the government defendants. Docket No. 67 at
Plaintiff filed a timely objection [Docket No. 69] on March
2, 2018. The United States filed a response to the objection
on March 13, 2018. Docket No. 70.
initiated this pro se action on March 1, 2016,
challenging the government's efforts to collect unpaid
tax liabilities. Docket No. 1. Plaintiff filed an amended
complaint on April 8, 2016. Docket No. 10. On May 5, 2016,
the court dismissed plaintiff's amended complaint as
legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
Docket No. 12 at 4. On appeal, the Tenth Circuit affirmed the
dismissal most of plaintiff's claims, but reversed and
remanded for further consideration of plaintiff's
“non-frivolous legal claim that the IRS has improperly
levied exempt VA disability benefits by placing a levy on all
funds in the bank account where [plaintiff's] disability
benefits are deposited.” Maehr v. Koskinen,
664 Fed.Appx. 683, 686 (10th Cir. 2016) (unpublished). On
remand, the magistrate judge directed plaintiff to file an
amended complaint clarifying his surviving claim. Docket No.
23 at 2. Plaintiff filed his second amended complaint on
January 17, 2017. Docket No. 26. On April 13 and 14, 2017,
defendants Wells Fargo Bank, NA and the United States filed
separate motions to dismiss. Docket Nos. 45, 46. On February
20, 2018, the magistrate judge recommended that both motions
be granted on the grounds that: (1) plaintiff's
allegations are insufficient to establish a meritorious claim
against Wells Fargo; (2) plaintiff's claims for
injunctive and declaratory relief against the United States
are barred by the Anti-Injunction Act (“AIA”), 26
U.S.C. § 7421(a), and the Declaratory Judgment Act
(“DJA”), 28 U.S.C. § 2201(a); and (3)
plaintiff's remaining request for compensatory and
punitive damages fails because his claims for equitable
relief are legally baseless. Docket No. 67 at 5, 10, 11.
STANDARD OF REVIEW
Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
“proper” if it is both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
absence of a proper objection, the Court reviews the
magistrate judge's recommendation to satisfy itself that
there is “no clear error on the face of the
record.”Fed. R. Civ. P. 72(b), Advisory Committee
plaintiff is proceeding pro se, the Court will
construe his objection and pleadings liberally without
serving as his advocate. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
Dismissal of Claims Against Wells Fargo
magistrate judge recommends that the Court dismiss
plaintiff's claims against Wells Fargo based on the Tenth
Circuit's determination that the allegations in
plaintiff's first amended complaint were insufficient to
establish a valid claim for relief against Wells Fargo.
Docket No. 67 at 5. The magistrate judge notes that
“[p]laintiff's allegations have not changed”
on remand, and thus dismissal is appropriate pursuant to the
Tenth Circuit's order. Id.
objection, plaintiff raises only one argument that could be
construed as relevant to the magistrate judge's
recommendation on Wells Fargo's motion to dismiss.
Plaintiff contends that the magistrate judge ignored evidence
in the record showing that Wells Fargo had acted unlawfully
and in defiance of the Supreme Court's decision in
Porter v. Aetna Casualty & Surety Co., 370 U.S.
159 (1962). Docket No. 69 at 11. However, this argument fails
to address the magistrate judge's finding that
plaintiff's allegations against Wells Fargo are
insufficient to state a plausible claim for relief.
See Docket No. 67 at 5. Discerning no error in the
magistrate judge's determination, the Court will overrule
plaintiff's first objection and grant Wells Fargo's
motion to dismiss.
Dismissal of Claims Against the United States
magistrate judge recommends dismissal of plaintiff's
claims against the United States on the ground that
plaintiff's claims for declaratory and ...