United States District Court, D. South Carolina
Richard E. Boggs, Petitioner,
United States; Peter Rae and Coworkers, et al. as individuals; and Internal Revenue Service, Respondents.
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
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].
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
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
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.
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].
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],  and a motion to
quash the summonses [ECF No. 22].
Standard on Motion to Dismiss
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).
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).