relied was "constitutionally void." See, e.g., 26 U.S.C. § 6331,
Further, where, as here, the relief sought against an
employee of the United States acting in furtherance of her
statutory powers is, in reality, sought against the United
States, the action will be deemed to be against the United
States itself. Frasier, 607 F. Supp. at 322 (citing Larson, 337
U.S. at 688, 69 S.Ct. at 1460); see also Dugan v. Rank,
372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1962). Consequently,
consistent with the principles enunciated by the Supreme Court,
this Court will treat this action as one against the United
States. See id.
Over a century ago, the Supreme Court declared that "the
United States cannot be lawfully sued without its consent in
any case." United States v. Lee, 106 U.S. 196, 204, 1 S.Ct.
240, 247, 27 L.Ed. 171 (1882) (emphasis added). Derived from
English law, the doctrine of sovereign immunity has been
applied consistently by the courts of the United States.
Chemerinsky, FEDERAL JURISDICTION, § 9.2.1, at 470-71 (1989).
In fact, the doctrine is so deeply entrenched in American law
that only Congress can grant the consent necessary to sue the
United States. Id. The Supreme Court has stressed that, absent
a statute expressly granting the right to file a suit against
the United States, courts are without jurisdiction to entertain
such suits. United States v. Testan, 424 U.S. 392, 399, 96
S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976) (citation omitted).
Further, a waiver of sovereign immunity "`cannot be implied but
must be unequivocally expressed.'" Id. (quoting United States
v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52
(1969) (additional citation omitted)).
Although it is almost impossible to determine from
plaintiff's papers the causes of action he is attempting to
raise, it is evident that the United States has not waived its
immunity from suit in any manner contemplated by plaintiff.
Even the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.,
which allows a plaintiff to file a tort action against a
federal official, specifically exempts actions involving the
"assessment or collection" of taxes. 28 U.S.C. § 2680(c).
Likewise, the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a),
prohibits the injunctive relief that plaintiff seeks. See
Frasier, 607 F. Supp. at 323 n. 6 (citation omitted) (pointing
out that injunctive relief is available for restraining the
assessment or collection of taxes only "where the plaintiff
establishes equity jurisdiction and demonstrates that under no
circumstances could the United States prevail.").
Plaintiff seemingly asserts that defendant violated his
civil rights under 42 U.S.C. § 1983, 1985, and 1986 by filing
a Notice of Levy on Prudential on April 23, 1987. All of these
claims are barred on statute of limitations grounds. Plaintiff
commenced this action on May 11, 1990. Defendant had contacted
plaintiff and attempted to collect the unpaid taxes prior to
filing the Notice of Levy. Therefore, this Court determines, in
accordance with federal law, see Chardon v. Fernandez,
454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), that plaintiff's cause of
action accrued on April 23, 1987, more than three years prior
to the commencement of plaintiff's action. Therefore, it is
clear that plaintiff's § 1986 claim is barred by the one year
statute of limitations which the statute itself provides.
In contrast, sections 1983 and 1985 do not specify a statute
of limitations period. Congress has determined that state law
governs when such a statute is "deficient." 42 U.S.C. § 1988;
Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928,
82 L.Ed.2d 36 (1984) (providing for a three-part inquiry:
courts first look to federal law; if none exists, the law of
the forum state is determined, and applied if the state law is
not inconsistent with the federal law's purpose).
In Wilson v. Garcia, the Supreme Court decided that a section
1983 claim is most closely akin to a state law claim for
personal injuries. 471 U.S. 261, 273, 105 S.Ct. 1938, 1945, 85
L.Ed.2d 254 (1985). It is to be noted that section 1983 does
not create substantive rights but, rather, is remedial in
nature. Id. at 278, 105 S.Ct. at 1948.
On that basis, the Supreme Court has directed that courts
apply the forum state's statute of limitations for such
actions. See id. at 280, 105 S.Ct. at 1949. Accordingly,
plaintiff's claim under section 1983 is time barred by New
York's applicable three year statute of limitations under
section 214(5) of New York Civil Practice Law and Rules.
The Court notes that even if plaintiff had timely filed his
claim under section 1983, his claim is without merit. Section
1983 plainly requires a showing that defendant violated the
Constitution or laws thereunder while acting "under color of
any statute, ordinance, regulation, custom, or usage of any
state or territory." § 1983. Simply put, plaintiff must
demonstrate that defendant acted "under color of state law."
See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101
L.Ed.2d 40 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535,
101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other
grounds; Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct.
662, 664-65, 88 L.Ed.2d 662 (1986); Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185
(1978)). In this case, plaintiff does not allege any state
action. All that can be ascertained by the Court is that
defendant acted pursuant to federal law.*fn2
Plaintiff's section 1985 conspiracy claim also is barred on
statute of limitations grounds. Again, even if plaintiff had
brought this claim within the requisite period of time, the
claim is without merit. The pleading requirements for alleging
a conspiracy are stringent and must be substantiated.
Frasier, 607 F. Supp. at 324 (citing Contemporary Mission, Inc.
v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.
1981)). In his complaint, plaintiff uses the word "conspiracy"
but completely fails to allege any facts which would support a
conspiracy. Similarly, plaintiff's various conspiracy claims
under Title 18 are baseless. Finally, because sections 241 and
242 do not provide for a private right of action, plaintiff's
reliance on them is misplaced. See Dugar v. Coughlin,
613 F. Supp. 849 (S.D.N.Y. 1985).
In sum, defendant's motion for summary judgment is granted
in its entirety. Viewing the facts in the light most favorable
to plaintiff as the nonmoving party, Donahue, 834 F.2d at 57,
this Court is nevertheless compelled to find that there is "no
genuine issue as to any material fact and that [defendant] is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Moreover, plaintiff's responsive papers fall far short of
setting forth any genuine issues to be decided at trial, as
required by Rule 56(e) of the Federal Rules of Civil Procedure.
Finally, in light of this Court's grant of defendant's
motion for summary judgment, plaintiff's motion to amend his
complaint pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure is denied. The Court notes, however, that the
amendments contemplated by plaintiff would not have impacted
on this Court's decision.
For the reasons set forth, defendant's motion for summary
judgment is granted. The Clerk of the Court is directed to
close the file on this case.