The opinion of the court was delivered by: Yvette Kane, United States District Judge
Before this Court is Defendants' motion to dismiss and/or for summary
judgment (Doc. No. 12). The motion has been fully briefed, and is ripe
for disposition. For the reasons that follow, the motion will be
On September 10, 2001, Plaintiff Thurston Bell, proceeding pro se,
filed a complaint against IRS Commissioner Charles Rossotti in his
official capacity, and IRS agents Chris Roginsky and Kathleen Lennon in
their official and individual capacities. In his suit, Bell seeks (1) a
declaratory judgment that his websites and their content are protected by
the First Amendment to the United States Constitution, (2) an injunction
against Defendants preventing them from approaching him and his family,
and (3) compensatory damages in the amount of $30,000 and punitive
damages of $1,000,000 from each of the Defendants sued in their
individual capacities for violations of his First Amendment rights.
Ultimately, Plaintiff's complaint alleges that an IRS investigation of
his websites violates his First Amendment rights. However, the complaint
first details a number of alleged wrongs to others that have heightened
Plaintiff's fear of imminent IRS action against him.*fn1 These events
include raiding the business office of Plaintiff's former associate, Nick
Jesson, and the investigation of Plaintiff's associates Darlow Thomas
Madge and Hal Hearn. Plaintiff offers these events as evidence of his
fear that the IRS will undertake similar actions against him.
On September 4, 2001, Plaintiff received a letter from the IRS stating
that he and his websites were under investigation for possible violation
of 26 U.S.C. § 6700*fn2 and 7408.*fn3 The letter stated that a
possible consequence of the investigation would be an injunction.
Furthermore, the letter notified Plaintiff that he was required to
cooperate with the investigation. Plaintiff asserts that the IRS
investigative activity violates his First Amendment right to free
The Court will consider the pending motion as a motion to dismiss.
Defendants move to dismiss Plaintiff's complaint under Fed.R.Civ.P.
12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion may be treated either as a
facial or factual challenge to the court's subject matter jurisdiction.
Gould Electronics, Inc. v. United States, 220 F.3d 169, 177 (3d Cir.
2000). When reviewing a facial attack, the Court considers only the
allegations in the complaint, documents referenced therein, and documents
attached thereto. Id. These must be read in the light most favorable to
the plaintiff. Id. Only when reviewing a factual attack may the court
consider evidence outside the pleadings. Id.
As with a Rule 12(b)(1) facial attack, when considering a Rule 12(b)(6)
motion to dismiss, the Court considers only the
allegations within the
complaint, any documents referred to in the complaint, and documents
attached to the complaint. "A motion to dismiss pursuant to Rule 12(b)(6)
may be granted only if, accepting all well pleaded allegations in the
complaint as true, and viewing them in the light most favorable to
plaintiff, plaintiff is not entitled to relief." In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal
citation omitted). Therefore, when analyzing Defendants' Motion to
Dismiss, this Court construes all facts alleged in the complaint as
true, and draws all reasonable inferences in the plaintiff's favor. Trump
Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478
(3d Cir. 1998). This Court will only grant Defendants' Motion to Dismiss
if there is clearly no remedy available for the Plaintiff's claim, or if
Plaintiff has no right or power to assert the claim. Melo-Sonics Corp.
v. Cropp, 342 F.2d 856, 859 (3d Cir. 1965).
On the face of his complaint, Plaintiff seeks to enjoin the IRS
investigation of whether his websites violate United States law.
Plaintiff also seeks an injunction
prohibiting Defendant Commissioner and all of his
agents (defined as those executing the orders of
Defendant Commissioner or operating in any form of
cooperation or collusion) from physically approaching
Plaintiff, His Family, and the Offices of NITE, at a
distance of less than 300 feet, ...