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Boggs v. United States

United States District Court, D. South Carolina

July 26, 2019

Richard E. Boggs, Petitioner,
v.
United States; Peter Rae and Coworkers, et al. as individuals; and Internal Revenue Service, Respondents.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Richard Boggs (“Petitioner”) proceeding pro se, filed a petition seeking to quash summonses by the Internal Revenue Service (“IRS”). Petitioner also sues the United States of America (“USA”) and “Peter Rae and coworkers” (collectively with IRS, “Respondents”). [ECF No. 1].

         This matter comes before the court on Respondents' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). [ECF No. 28]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the dismissal procedures and possible consequences if he failed to respond adequately to the motion by April 5, 2019. [ECF No. 29]. The motion having been briefed [ECF No. 33, 34], it is ripe for disposition.

         All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Because the motion to dismiss is dispositive, this Report and Recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the court grant Respondents' motion to dismiss.

         I. Factual Background

         On December 10, 2018, Special Agent Peter Rae of the IRS's Criminal Investigation division issued seven administrative summonses (“the summonses”) in connection with an investigation. [ECF No. 1-2]. The summonses are addressed to six of Petitioner's current and/or former employers and to a company that provides video doorbell subscription services, Ring.com. Id. All seven summonses are addressed to entities outside of the State of South Carolina. Id.

         Petitioner initiated this action by filing a Petition on December 19, 2018, seeking: (1) to quash the summonses; (2) a “Bill of Particulars” from the IRS documenting probable cause for its criminal investigation; (3) civil damages of an unspecified amount; (4) a writ of mandamus compelling “the supervisors of this/these errant federal actors and outlaws to discipline them and compel them to cease their unlawful activities . . .”; and (5) a statement of findings by the court “backed up by rulings from the Supreme Court” if the court disagrees with Petitioner's claims as to jurisdiction. [ECF No. 1].

         Subsequent to filing his petition, Petitioner filed an “Affidavit of Material Facts In Support of Petition to Quash Summons, ” [ECF No. 6], a motion for temporary restraining order and preliminary injunction [ECF No. 21], [1] and a motion to quash the summonses [ECF No. 22].

         II. Discussion

         A. Standard on Motion to Dismiss[2]

         Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         1. Subject ...


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