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Himchak v. Kane

United States District Court, Middle District of Pennsylvania

March 24, 2015

WILLIAM A. HIMCHAK, III, Plaintiff
v.
KATHLEEN KANE, Attorney General of Pennsylvania, et al., Defendants

ORDER

Christopher C. Conner, Chief Judge.

AND NOW, this 24th day of March, 2015, upon consideration of the report (Doc. 20) of Magistrate Judge Thomas M. Blewitt, recommending the court dismiss pro se plaintiff’s complaint with prejudice, wherein Judge Blewitt specifically finds that the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341, divests the court of subject matter jurisdiction to entertain plaintiff’s constitutional challenges to real estate and school property taxes, both in Franklin County, Pennsylvania, and statewide, see 28 U.S.C. § 1341 (“The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”), and observes that the Supreme Court of the United States has applied the TIA to prohibit both requests for injunctive relief and for declaratory judgment, see Gass v. Cnty. of Allegheny, 371 F.3d 134, 136 (3d Cir. 2004) (“Although the express language of the Tax Injunction Act only refers to injunctive actions, the Supreme Court has held that the Tax Injunction Act also prohibits federal courts from issuing declaratory judgments holding state tax laws unconstitutional.”) (citing California v. Grace Brethren Church, 457 U.S. 393, 408 (1982)), and wherein Judge Blewitt concludes that plaintiff’s pleading is deficient for copious other reasons, to wit: (1) failure to comply with Federal Rule of Civil Procedure 8(a); (2) failure to establish personal involvement of Kathleen Kane, Attorney General of Pennsylvania, Tom Corbett, former governor of Pennsylvania, Pennsylvania Congressman Bill Schuster, Pennsylvania Senator Richard Alloway, II, and the Pennsylvania Departments of Education and Military & Veteran Affairs; (3) failure to overcome the sovereign immunity bar with regard to the Departments of Education and Military & Veteran Affairs; and (4) improperly attempting to initiate criminal proceedings as a private person, (see Doc. 20 at 11-18), and, following an independent review of the record, the court in agreement with the magistrate judge that plaintiff’s complaint must be dismissed for lack of subject matter jurisdiction, and that such dismissal should be with prejudice as plaintiff cannot overcome the bar to injunctive and declaratory relief established by the Tax Injunction Act, and the court noting that plaintiff has objected (Doc. 25)[1] to the report, and that several defendants filed a response (Doc. 26) to plaintiff’s objections, and the court finding plaintiff’s objection to be without merit and squarely addressed by Judge Blewitt’s report, [2] it is hereby ORDERED that:

2. Plaintiff’s complaint (Doc. 1) is DISMISSED with prejudice.

4. The Clerk of Court is directed to CLOSE this case.


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