United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of pro se
plaintiff Monica Napoli for leave to commence this action
without prepayment of the required filing fee. Having
reviewed the financial information submitted in support, the
Court will grant the motion and the filing fee will be
waived. See 28 U.S.C. § 1915(a)(1). For the
reasons explained below, the Court will order plaintiff to
show cause as to why this case should not be dismissed for
lack of subject matter jurisdiction.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is
frivolous, is malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief. To state a claim
for relief, a complaint must plead more than “legal
conclusions” and “[t]hreadbare recitals of the
elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A plaintiff must demonstrate a
plausible claim for relief, which is more than a “mere
possibility of misconduct.” Id. at 679.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. Determining
whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.
Id. at 679.
reviewing a pro se complaint under 28 U.S.C. §
1915, the Court accepts the well-plead facts as true,
White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984),
and liberally construes the complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v.
Kerner, 404 U.S. 519, 520 (1972). A “liberal
construction” means that if the essence of an
allegation is discernible, the district court should construe
the plaintiff's complaint in a way that permits his or
her claim to be considered within the proper legal framework.
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir.
2015). However, even pro se complaints are required
to allege facts which, if true, state a claim for relief as a
matter of law. Martin v. Aubuchon, 623 F.2d 1282,
1286 (8th Cir. 1980). See also Stone v. Harry, 364
F.3d 912, 914-15 (8th Cir. 2004) (refusing to supply
additional facts or to construct a legal theory for the
pro se plaintiff that assumed facts that had not
Monica Napoli brings this civil case against one defendant,
“Department of Treasury, Internal Revenue Service,
” alleging that defendant owes her $6, 547.00. ECF No.
1 at 1-2 & 4. Plaintiff states as follows:
The Plaintiff's 2018 Federal Income Tax Return was filed
and accepted by the Internal Revenue Service on February 27,
2019. The Plaintiff has requested of the Internal Revenue
Service why the tax return refund was being held and the
Internal Revenue Service has not given any reason whatsoever
why the tax return refund has not been issued to the
taxpayer. The Plaintiff is in dire need of the refund having
two young children and prays that a judgment be rendered
against the defendant.
Id. at 5.
relief, plaintiff requests $25, 000 in damages for
“careless and reckless behavior in holding her refund 5
months for no reason.” Id.
Congress has specifically authorized an agency of the federal
government, such as the Internal Revenue Service
(“IRS”), to be sued in its own name, an action
may not be maintained against that agency. See Blackmar
v. Guerre, 342 U.S. 512, 515 (1952). Congress has not
specifically authorized suit against the IRS. Therefore, it
is not a suable entity. See, e.g., Higgins v. U.S.,
2003 WL 21693717 at *1 (E.D. N.Y. May 27, 2003) (holding that
IRS was not subject to suit in its own name); Frasier v.
Hegeman, 607 F.Supp. 318, 322 (N.D. N.Y. 1985) (holding
that a suit against the IRS is a suit against the United
States); Krouse v. U.S. Gov't Treasury Dep't
IRS, 380 F.Supp. 219, 221 (C.D. Cal. 1974) (holding that
the Department of the Treasury and the IRS are not entities
subject to suit). “District courts lack subject-matter
jurisdiction over claims against the Government to which
Congress has not consented.” Miller v. Tony &
Susan Alamo Found., 134 F.3d 910, 915-16 (8th Cir.
1998). Because the IRS cannot be subject to suit, a case
against the agency must be dismissed because this Court does
not have jurisdiction over the claims.
plaintiff had filed suit against the proper defendant, the
United States, the Court notes that it appears that plaintiff
has failed to exhaust her administrative remedies with
respect to her claim. Pursuant to § 7422 of Title 26 of
the United States Code, a taxpayer may only file suit for a
refund after the taxpayer has filed an administrative claim
for a refund. 26 U.S.C. § 7422(a). If the
administrative claim is denied, the taxpayer may then file a
tax refund suit in the district court, but only within the
time constraints provided in 26 U.S.C. §6532(a)(1).
Compliance with these requirements is jurisdictionally
required of the taxpayer before initiating the lawsuit.
instant case, the complaint fails to state any facts to meet
the jurisdictional requirements of the statute. Plaintiff states
that she “requested” the IRS tell her why she has
not received her refund, but she does not assert that she has
filed a timely claim for a refund. See ECF No. 1 at
5. Thus, to the extent that this case can be construed as a
refund action, this Court appears to lack subject matter
jurisdiction to decide the claim. In light of the
aforementioned, plaintiff will be required to ...