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HUDSON VALLEY BLACK PRESS v. INTERNAL REVENUE SERVICE

March 3, 2004.

HUDSON VALLEY BLACK PRESS, Plaintiff, -against- INTERNAL REVENUE SERVICE, WILLIAM STRUGATZ and CELESTE RICHARDSON, Defendants


The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge

OPINION AND ORDER

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.

BACKGROUND

  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 Page 2 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. (Id.)

  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 violations Page 3 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 the IRS.

  DISCUSSION

 I. Standard of Review

  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[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Page 4 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 Page 5 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 Page 6 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 allegations.

  The Complaint also fails to raise allegations that bring this case within Davis. While Page 7 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 contends ...


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