The opinion of the court was delivered by: Wexler, District Judge.
In the above-referenced action, pro se plaintiff Thomas
Powers ("plaintiff" or "Powers") asserts claims against
defendant Sara Karen ("defendant" or "Karen") for violations of
his constitutional rights pursuant to 42 U.S.C. § 1983, 1985,
and 1986, as well as 18 U.S.C. § 241, 242, 872, 1621, 1623,
2383, and 2384. Currently before the Court are defendant's
motion for summary judgment pursuant to Rule 56(c) of the
Federal Rules of Civil Procedure and plaintiff's motion to
amend his complaint pursuant to Rule 15(a) of the Federal Rules
of Civil Procedure.
Plaintiff filed his complaint on May 11, 1990, alleging a
deprivation of his constitutional
rights by defendant, who has been employed as a revenue
officer of the Collection Division of the Internal Revenue
Service ("I.R.S.") since July of 1982. A revenue officer's
duties include, for purposes of this matter, the collection,
by levy, of unpaid federal taxes together with applicable
interest and penalties, as they have been assessed by the
I.R.S., or accrued by operation of law. In furtherance of
these duties, plaintiff was empowered with the authority to
serve Notices of Levy upon delinquent taxpayers. The service
of such Notices of Levy effects the seizure of the property of
delinquent taxpayers pursuant to the Internal Revenue Code.
In March of 1987, defendant was assigned to collect
plaintiff's unpaid federal tax liabilities for the tax periods
ending December 31, 1983 and December 31, 1984. To that end,
defendant contacted plaintiff and asserts that plaintiff
informed her that he would not pay the tax liabilities.
Additionally, defendant states that plaintiff refused to
provide the financial information from which the I.R.S. could
have determined his ability to pay the liabilities and the
sources from which the liabilities could have been satisfied.
(Declaration of Defendant at 3). After unsuccessfully
attempting to compel payment of plaintiff's tax liabilities,
defendant, in accordance with I.R.S. procedures, commenced an
enforced collection action by filing notice of a federal tax
lien. During this time, defendant learned that plaintiff had
an insurance policy, with a cash loan value of $1,618.40, held
by Prudential Insurance Company ("Prudential"). On April 23,
1987, defendant served a Notice of Levy on Prudential, who
honored the levy, and remitted the net cash loan value of
plaintiff's policy to the I.R.S.
It is plaintiff's contention that defendant's conduct
violated his constitutional rights, claiming, inter alia, a
deprivation of due process, violation of the Internal Revenue
Code, and violations of various sections of the Civil Rights
Act. Plaintiff seeks damages of $50,000 as well as injunctive
relief. (Complaint at 15).
Defendant contends that plaintiff's claims are without merit
in that she was acting pursuant to the authority prescribed by
the I.R.S. and Internal Revenue Code, and that her conduct was
limited to those prescribed powers. Moreover, defendant
asserts, inter alia, that plaintiff's action is barred by the
doctrine of sovereign immunity, and is time barred under
section 214(5) of the New York Civil Practice Law and Rules.
Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, a party is entitled to summary judgment when it is
shown that "there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Fed.R.Civ.P. 56(c). The Supreme Court reiterated this
standard when it instructed that "the plain language of Rule
56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The Supreme Court determined that
"there can be `no genuine issue as to any material fact,' since
a complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other facts
immaterial." Id. at 322-23, 106 S.Ct. at 2552 (quoting
As a general rule, a pro se plaintiff is not held to a
stringent standard of pleading. See Haines v. Kerner,
404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (per curiam), reh'g
denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972).
However, "`a complaint against a federal official, given the
possibility of harassment and potential for interference with
critical operations of government, must be held to an exacting
standard.'" Johnson v. United States, 680 F. Supp. 508, 517
(E.D.N.Y. 1987) (quoting Frasier v. Hegeman, 607 F. Supp. 318,
322 (N.D.N.Y. 1985) (citing Harlow v. Fitzgerald, 457 U.S. 800,
807-08, 102 S.Ct. 2727, 2732-33, 73 L.Ed.2d 396 (1982))).
With these principles in mind, the Court turns to address the
Plaintiff names Karen, an employee of the United States, as
the sole defendant in this action. As noted above, defendant
was, at the time of the events about which plaintiff
complains, an I.R.S. revenue officer empowered with the
authority to effectuate the seizure of delinquent taxpayers'
property to satisfy unpaid federal tax liabilities.*fn1
Insofar as the Court determines that plaintiff's allegations
fail in all respects to state any actionable claims against
defendant, defendant's motion for summary judgment is granted.
Plaintiff alleges numerous violations of his constitutional
rights. It is important to note that nowhere in the complaint
nor in any of plaintiff's submissions to the Court does
plaintiff articulate any facts which even suggest a
constitutional violation by defendant. Nothing in the record
indicates that defendant exceeded her statutory powers or that
those powers were unconstitutional in any respect. In fact, it
is only from defendant's papers that the Court is able to
glean the basis of plaintiff's allegations. As stated,
pleadings against federal officials are to be held to an
"exacting standard." Johnson, 680 F. Supp. at 517. However, even
extending to Powers every benefit normally afforded a pro se
plaintiff, Haines, 404 U.S. at 520, 92 S.Ct. at 595, and
viewing the evidence in the light most favorable to him as the
nonmoving party, Donahue v. Windsor Locks Bd. of Fire Comm'rs,
834 F.2d 54, 57 (2d Cir. 1987), defendant is entitled to
summary judgment as a matter of law.
In a case which substantially mirrors the one at issue,
where plaintiff alleged violations of his constitutional
rights, the District Court for the Northern District of New
York determined that officers of the United States acting
within the scope of their official functions are entitled to
the same benefit of sovereign immunity enjoyed by the United
States. Frasier, 607 F. Supp. at 320 (citing Barr v. Matteo,
360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). In Frasier, a
taxpayer brought an action in state court against an I.R.S.
agent and the dairy farm upon which the I.R.S. served the
Notice of Levy. The action was removed to the federal court
and, on motion by defendants, the court dismissed the case. Id.
at 324. The district court determined that, absent an
allegation that the I.R.S. acted in bad faith, sovereign
immunity extends to employees of the I.R.S. who merely follow
I.R.S. procedures. Id. at 320 (citing Babylon Milk and Cream
Co., Inc. v. Rosenbush, 233 F. Supp. 735 (E.D.N.Y. 1964)
(additional citation omitted)).
Likewise, in the case before this Court, defendant acted
solely within the scope of her statutorily prescribed duties.
Although plaintiff's complaint speaks at times of "defendants"
and cites statutes which address conspiracy, plaintiff neither
names the I.R.S. as a party nor alleges bad faith on the part
of the I.R.S. In the absence of such allegations, this Court
finds that no ...