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July 3, 1991


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.


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 Fed.R.Civ.P. 56(c)).

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 motions.

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 ...

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