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PUGH v. IRS

June 7, 1979

Wesley Collins PUGH
v.
INTERNAL REVENUE SERVICE1



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

This is an action for damages and injunctive relief brought by plaintiff, pro se. The matter is before the Court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In order to ascertain the basis for plaintiff's claims, the Court has considered plaintiff's original complaint, his first and second amended complaints, supporting documents filed with the amended complaints and several letters addressed to the Court.

 A review of the above mentioned materials reveals that plaintiff's action arises from an audit of his 1975 income tax return. On or about May 25, 1977, plaintiff reported to the Audit Division of the Internal Revenue Service (IRS) in Philadelphia at the request of IRS. After reviewing plaintiff's return, plaintiff's vehicle usage and home-office space deductions were questioned by the IRS auditor. The auditor requested that plaintiff produce verification from his employer regarding the deduction for vehicle usage. Plaintiff explained the basis for the deduction and the reason for his inability to secure employer verification. The auditor accepted plaintiff's explanation for the amount of mileage involved, but the explanation for the home-office deduction was not accepted.

 Plaintiff was advised of his right to appeal within the IRS. Plaintiff appealed to the next administrative level whereupon plaintiff's vehicle usage deductions were permitted; however, his home-office deduction was again rejected. Plaintiff objected to the amount of the deficiency assessed and was thereupon advised of his right to contest the deficiency assessment.

 Plaintiff's complaints focus on the conduct of IRS auditors. Plaintiff claims that at the initial audit his protests concerning IRS estimates of certain mileage figures, gasoline costs, room capacities and similar factors were met by "threats" that the audit process would begin anew with strict adherence to all record-keeping requirements. Plaintiff complains that the attitude of the auditors prevented just assessments.

 Plaintiff brings this action for damages and injunctive relief against the IRS, the Department of the Treasury, the United States, the Commissioner of IRS, Jerome Kurtz, and the District Director of the IRS, James T. Rideoutte, claiming that his civil rights have been violated and that he has suffered injury due to the negligence of the defendants in the overall handling of the audit process. Plaintiff requests $ 400,000 in damages and an injunction to preclude further tortious conduct.

 Plaintiff's claims are premised on the due process and equal protection clauses of the Fourteenth Amendment and 42 U.S.C. § 1983.

 THIS IS A PRO SE COMPLAINT

 ALLEGATIONS REGARDING CIVIL RIGHTS AND CONSTITUTIONAL CLAIMS

 Plaintiff's civil rights claim is premised on a violation of 42 U.S.C. § 1983. In accordance with the recent pronouncement of the Supreme Court in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979), section 1983 is not a statute that secures "civil rights," but simply provides a remedy. Furthermore, a requisite for pursuing a remedy under section 1983 is that the defendant acted under color of state law. In the instant case, plaintiff complains about the actions of federal officers acting under color of federal law; therefore, section 1983 is not a remedy available to the plaintiff. Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971), Cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L. Ed. 2d 749 (1972).

 Plaintiff's constitutional claims are premised on violations of the due process and equal protection clauses of the Fourteenth Amendment. Although the Fourteenth Amendment applies only to the states, we shall consider whether the plaintiff has stated a due process or equal protection claim under the Fifth Amendment which would apply to the actions of federal officers.

 A sympathetic reading of plaintiff's complaint reveals his apparent desire for a conference with the defendant district director. Such a conference was arranged, and, after plaintiff's meeting with the district director, the plaintiff stated in documents filed with the Court that his conference "corrected" any due process violations.

 Again reading the plaintiff's allegations sympathetically, we have been unable to find any allegations of discrimination or other conduct which would support an equal protection violation. In addition, we have carefully scrutinized all the documents submitted by the plaintiff and have been unable to find any statement therein which could be interpreted as alleging a ...


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