The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
Plaintiff Hudson Valley Black Press ("HVBP") brings this
Bivens action against defendants William Strugatz and Celeste
Richardson in their individual capacities as employees of the Department
of the Treasury, Internal Revenue Service ("IRS"). Defendants move to
dismiss the Complaint*fn1 pursuant to FED. R. Civ. P. 12(b)(6) for
failure to state a claim. Alternatively, defendants request summary
judgment pursuant to FED. R. Civ. P. 56. For the reasons discussed
herein, defendants motion to dismiss is granted.
HVBP, a sole proprietorship appearing pro se in this
action,*fn2 (Stewart Aff. ¶ 17), publishes The Black Press,
a newspaper that focuses on matters of interest to the African-American
community. Defendants are ERS agents assigned to IRS facilities in Orange
County, New York. (Complt. ¶ 4.) In December 1998, Judge Brieant
issued an opinion in Agonafer v. Rubin wherein he concluded that
a former employee had proved at a bench trial that the IRS discriminated
against her on the basis of race. 35 F. Supp.2d 300, 305 (S.D.N.Y. 1998).
Sometime after this opinion was issued, HVBP published an article
addressing Agonafer that included comments highly critical of
the IRS. (Complt. ¶ 7.)*fn3 Two weeks later, the IRS announced
that it was auditing HVBP and, shortly thereafter, Strugatz appeared at
HVBP offices. (Id. ¶ 7(a).) During this meeting Strugatz
made "slurs about slavery reparation and the name of plaintiff s
publication" and criticized the content of the publication.
After Strugatz completed the audit, he used coercive tactics in an
attempt to persuade HVBP to sign a report containing false findings and
then filed the report after HVBP refused to do so. (Id. ¶¶
7(c), 7(d).) An IRS hearing officer rejected Strugatz's false report and
Strugatz visited HVBP's office again to try and coerce HVBP to sign the
report. (Id. ¶ 7(e).) Part of this visit was recorded on
audiotape. (Id.) Sometime thereafter, Richardson replaced
Strugatz on the matter and all of HVBP's relevant accounting records,
including tax returns and computer diskettes, were seized. (Id.
¶¶ 7(g), 7(h).) "Plaintiff made repeated requests to defendant for
copies of the tax returns" so he could defend himself in the
administrative proceeding but HVBP's requests were refused. (Id.
¶ 7(i).) Richardson acknowledged that the IRS possessed the relevant
records "and promised to provide copies to plaintiff via [the] Freedom of
Information Act. . . ." (Id. ¶ 7(k).) Instead Richardson
caused tax liens to be filed against HVBP. (Id.) At an
administrative hearing, HVBP's requests for the relevant documents and
diskettes were again denied. (Id. ¶ 7(1).) As a result of
defendants' actions, HVBP has been unable to publish The Black
Press or otherwise conduct business. Plaintiff brought this
Bivens action seeking money damages to vindicate alleged
of his First, Fourth and Fifth Amendment rights.*fn4 Plaintiff
also asks this Court to vacate the tax liens at issue. Defendants move to
dismiss because they contend that a plaintiff seeking to vindicate its
civil rights may not pursue a Bivens action against agents of
On a motion to dismiss pursuant to FED. R. Civ. P. 12(b)(6), the court
must accept as true all of the well pleaded facts and consider those
facts in the light most favorable to the plaintiff. See Warth v.
Seldin, 422 U.S. 490, 501 (1975). On such a motion, the issue is
"whether the claimant is entitled to offer evidence to support the
claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1973),
overruled on other grounds by, Davis v. Scherer, 468 U.S. 183
(1984). A complaint should not be dismissed for failure to state a claim
"unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting
Hughes v. Rowe, 449 U.S. 5, 10 (1980)). Generally, "[c]onclusory
allegations or legal conclusions masquerading as factual conclusions will
not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL.,
MOORE'S FEDERAL PRACTICE § 12.34[b] (3d ed. 1997); see also
Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir.
Allegations that are so conclusory that they fail to give notice of the
basic events and circumstances of which the plaintiff complains, are
insufficient as a matter of law. See Martin v. N.Y. State Dep't of
Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). However, pro
se complaints "are held to `less stringent standards than formal
pleadings drafted by lawyers,' and are to be construed liberally on a
motion to dismiss." Van Ever v. N.Y. State Dep't of Corr.
Servs., No. 99 Civ. 12348, 2000 WL 1727713, at *2 (S.D.N.Y. Nov.
21, 2000) (citations omitted).
II. Bivens v. Six Unknown Fed. Narcotics Agents
In Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme
Court held that the plaintiff could bring a civil suit against agents of
the Federal Bureau of Narcotics seeking money damages to vindicate a
deprivation of that plaintiff's Fourth Amendment right to be free from
unreasonable searches and seizures. 403 U.S. 388, 397 (1971). Although
the Fourth Amendment was silent on the issue, the Court reasoned that it
could recognize a private action for money damages because Congress had
not prohibited such an action and there were "no special factors
counselling hesitation in the absence of affirmative action by Congress."
Id. at 396-97.
There have been two occasions since Bivens wherein the Supreme
Court has extended its holding to apply to other constitutional
deprivations caused by agents of the federal government. In Davis v.
Passman, the Court held that the plaintiff, a former congressional
staff member who was discriminated against by a congressman on the basis
of gender, could bring a Bivens action. 442 U.S. 228, 248-49
(1979). The specific right that was allegedly violated in Davis
was the right to be free from official discrimination. Id. at
235; see also Bush v. Lucas, 462 U.S. 367, 376 (1982). This
right, the Court held, was found in the Equal Protection Clause which is
incorporated into the Fifth
Amendment Due Process Clause through the doctrine of reverse
incorporation. Davis, 442 U.S. at 234. The second instance
wherein the Court was willing to extend the holding of Bivens
was in Carlson v. Green, 446 U.S. 14, 18-19 (1979). In
Carlson, the representative of a deceased prison inmate was
allowed to pursue a Bivens action to vindicate a violation of
the prisoner's Eighth Amendment right to be free from cruel and inhuman
punishment. Id. Then Associate Justice Rehnquist filed a
dissenting opinion in the case that advocated the complete rejection of
the Bivens doctrine. Id. at 34 (Rehnquist dissenting).
Even construing the allegations in the Complaint liberally, the present
case does not fall within Bivens, Davis or Carlson.
Although HVBP claims that there was a Fourth Amendment violation that
brings this case within Bivens, plaintiff offers only the
following slender allegation in the Complaint: "According to plaintiff's
accountant, all the accountants [sic] records were seized and taken into
custody by the defendant for the period in which the . . . delinquent
taxes are claimed, [sic] and the plaintiff's tax return records and
diskettes which contained the records for these periods were included in
the seizure." (Complt. ¶ 7(a).) This statement is inadequate because
plaintiff has not alleged that its property was seized in the course of a
warrantless search or that the agents seizing the property were acting
under a defective warrant. Cf. G.M. Leasing Corp. v. United
States, 429 U.S. 338, 359-60 (1976) (holding that IRS agents
violated the Fourth Amendment when they seized taxpayer property during a
warrantless search and remanding for a determination of whether the
plaintiff's Bivens action should be dismissed because the IRS
agents acted in good faith); Castro v. United States,
34 F.3d 106, 113 (2d Cir. 1994) (Fourth Amendment violation was properly pled
where "the complaint alleged that the federal agents, acting without a
search warrant or probable
cause, entered and searched" the plaintiff's home).*fn5
Furthermore, plaintiff does not even indicate who seized the property.
HVBP states that "defendant" seized the property this reference
could be to Strugatz or Richardson or it could even be to the IRS since
HVBP refers to the IRS as "defendant" in multiple paragraphs of the
Complaint. (Complt. ¶¶ 7(a), 7(g), 7(k).) While we must liberally
construe the pleadings of a pro se plaintiff, we cannot merely
assume that plaintiff meant to allege that the defendants in this case
seized taxpayer property from private offices without a warrant or
pursuant to a defective warrant in order to cure HVBP's defective
The Complaint also fails to raise allegations that bring this case
within Davis. While
plaintiff arguably has established that HVBP was denied due
process,*fn6 Davis involved a violation of equal protection.
See FDIC v. Meyer, 510 U.S. 471, 484 n.9 (1994) (noting that
while the Court allowed the plaintiff to proceed with an equal protection
claim in Davis, the Court has not recognized a Bivens
claim to remedy other due process violations). No facts giving rise to a
claim based on an equal protection violation have been alleged here; HVBP