United States District Court, E.D. Pennsylvania
GILBERT M. MARTINEZ, Plaintiff,
SARAI BERRIOS, Defendant.
G. SMITH, J.
pro se plaintiff has moved to proceed in forma
pauperis in this action against the mother of one of his
minor children. Apparently, the mother wrongfully removed the
minor child from the Commonwealth of Pennsylvania despite the
plaintiff maintaining primary physical custody of the child.
In addition, during a period of time in which the mother
lacked physical custody of the minor child, she sought and
received a tax credit for the minor child, which resulted in
the Internal Revenue Service denying the plaintiff's
claim for a similar credit.
response to the mother taking the minor child out of
Pennsylvania, the plaintiff sought and obtained a state court
order awarding him sole physical and legal custody of the
minor child. He has now filed this action seeking damages and
injunctive relief for violations of the Internal Revenue Code
(for fraudulently claiming E.B. as a dependent in her tax
return) and the Uniform Child Custody Jurisdiction and
Enforcement Act (for wrongfully removing the minor from the
it appears that the mother's conduct in this case is
wrongful and potentially unlawful, the plaintiff has failed
to state a plausible claim for relief in this case. In
particular, although the plaintiff is asserting causes of
action under the Internal Revenue Code, the provisions he
references do not provide a basis for him to obtain relief.
Additionally, although the plaintiff claims that a violation
of the Uniform Child Custody Jurisdiction and Enforcement Act
occurred, it appears that this court lacks jurisdiction to
entertain such a claim and even if the court had
jurisdiction, it does not appear that the Act provides for a
federal cause of action for damages. Accordingly, the court
must dismiss the complaint. Since the parties appear to be
completely diverse and the plaintiff vaguely references
tortious conduct by the defendant, the court will grant him
leave to file an amended complaint in the event he can
articulate a cognizable basis for a state law claim against
ALLEGATIONS AND PROCEDURAL HISTORY
pro se plaintiff, Gilbert M. Martinez
(“Martinez”), commenced this action by filing a
motion to proceed in forma pauperis (the “IFP
Motion”), a proposed complaint against the defendant,
Sarai Berrios (“Berrios”), and a purported motion
for a preliminary injunction on March 1, 2018. Doc. No. 1. In
the introductory paragraph of the complaint, Martinez
describes this action as follows:
This is a [c]ivil action seeking injunction relief, monetary
damages, past and ongoing economic loss, compensatory and
punitive damages, disbursements, costs and attorney fees for
tort acts brought in violation to (UCCJEA) the Uniform
[C]hild [C]ustody Jurisdiction [and] Enforcement [A]ct of
(1997), [t]he [f]raudulent filing of information on Federal
tax returns pursuant to Internal Revenue [C]ode of 1986 as
amended Public Law 104-168 Title VI sec. 601(a), 26 USC 7434,
26 USC 24 (child [t]ax [c]redit).
at 1 (alterations to original), Doc. No. 1-1. He purports to
invoke jurisdiction “pursuant to Article III Sec. 2 of
the United States Constitution, 28 USC 1331, Public Law
104-168 Title VI sec. 601(a), 26 USC 7434, 26 USC 24 (child
Tax [c]redit)” and states that “[t]his court has
jurisdiction because the disputes which give rise to this
claim are over violations over Federal Laws, and between
citizens of different states.” Id.
(alterations to original).
factual allegations, Martinez alleges that he and Berrios
have a minor son, E.B.Id. at 2. Berrios currently
resides in Florida. Id. In February 2015,
Martinez's mother-in-law notified him that Berrios was
asking his relatives if E.B. could live with them because she
could not take care of E.B. anymore. Id. Berrios was
also considering placing E.B. in a state home. Id.
hearing about Berrios's desire to no longer care for
E.B., Martinez reached out to her and, after a brief
discussion, they agreed that E.B. would come and live with
him on a permanent basis. Id. Berrios then discharged
E.B. from school in Florida, and Martinez began a period of
permanent physical custody over E.B. in Pennsylvania.
Id. Since then, E.B. had been attending school in
Reading, and he was recently working part-time at
approximately January 2017, Martinez attempted to claim a
child tax credit on his tax return only to have the Internal
Revenue Service reject the claim because Berrios had already
claimed E.B. as a dependent. Id. Approximately a
year later, Martinez received a call from E.B.'s school
indicating that E.B. had not attended school that day.
Id. at 3. Martinez searched for E.B. for
approximately three hours before calling the City of Reading
Police Department and filing a missing person report.
Id. Martinez also tried contacting Berrios to
discern E.B.'s whereabouts, but she would not respond to
him. Id. At some point, Martinez learned that
Berrios had removed E.B. from the Commonwealth of
Pennsylvania. Id. at 2.
addition to taking E.B., Berrios filed a federal tax return
in January 2018, in which she claimed E.B. as a dependent.
Id. at 3. Martinez discovered this
“fraudulent” claim, and on January 30, 2018, he
sent the I.R.S. a “formal [stop]
complaint advising them of the fraud.” Id. at
3 & Ex. C.
Martinez brought some sort of child custody action in state
court and, after a hearing, the Honorable James Bucci of the
Court of Common Pleas of Berks County determined that Berrios
had unlawfully removed E.B. from the Commonwealth of
Pennsylvania. Id. at 3 & Ex. D. Judge Bucci also
ordered that (1) Martinez has sole legal and physical custody
of E.B., (2) Berrios (or any other person with physical
custody of E.B.) must immediately surrender custody of E.B.
to Martinez or any law enforcement officer enforcing this
order, and (3) law enforcement is authorized to render
assistance to Martinez in locating and delivering E.B. to
Martinez's custody. Id. at 3 & Ex. D. Martinez
mailed a copy of Judge Bucci's order to Berrios on
February 12, 2018. Id. at 3. Martinez also sent
Berrios a text message informing her of the custody order,
asking that she comply with it, and warning her that he would
be filing the instant civil action against her in federal
court if she did not comply with the order. Id.
on the aforementioned allegations, Martinez asserts causes of
action for violations of the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”)
(codified at 23 Pa. C.S. § 5401, et seq.) and
two provisions of the Internal Revenue Code, 26 U.S.C. §
24 (relating to the child tax credit) and 26 U.S.C. §
7434 (relating to “Civil damages for fraudulent filing
of information returns”) in count I of the complaint.
Id. at 4-5. He claims that he “is entitled to
recover against [Berrios] for injuries, damages and losses
approximately caused by her conduct as set forth in this
complaint.” Id. at 4 (alteration to original).
He also asserts that he is “suffering and will continue
to suffer irreparable injury and monetary damages as well as
damages for fraud, mental anguish, emotional distress,
financial hardship[, and he is entitled to] injunction
relief, attorney fees, costs, and One Hundred Fifty one
thousand (151, 000) dollars as well as punitive
damage[s].” Id. at 4-5 (alterations to
count II of the complaint, Martinez purports to assert
another claim under the UCCJEA and the Internal Revenue Code,
but it appears to relate to a different set of facts. In
particular, Martinez alleges that Berrios's act of
“defrauding” him was “constructively
planned by [Berrios] and others not party to this case to
cause [him] to be subjected to losing state benefits from the
Department of Public Welfare.” Id. at 5
(alterations to original). He asserts that Berrios and Gloria
Margary (“Margary”), the mother of his youngest
child, colluded on multiple occasions to lure him on trips
away from his home so Margary could call the police and
accuse him of crimes and then use the calls to gain advantage
over him in custody matters and evade claims he was asserting
against her. Id. Martinez appears to seek the same
damages and remedies for this alleged misconduct.
Id. at 6.
including requests for relief after each count in the
complaint, Martinez includes a separate
“PRAYER OF RELIEF”
where he specifies the injunctive relief that he is seeking
in this case. Id. at 6-7. It appears that he is
seeking to have the court order Berrios to return E.B. to his
custody in Pennsylvania and fine her $175.00 for every day
that E.B. is not returned to him. Id. He also seeks
a decree (1) stating that Berrios unlawfully claimed E.B. on
her tax returns for the years 2016 and 2017, (2) directing
the I.R.S. to stop any payments to her, and (3) directing the
I.R.S. to pay the appropriate amount to him for his 2017 tax
return. Id. at 7.
with the complaint, Martinez filed a “Motion for
Injunction Relief Memorandum of Law in Support.” Doc.
No. 1-3. The motion
seek[s] relief against [Berrios] . . . for wrongful
intentional tort acts removing [E.B.] from [Martinez's]
custody and unlawfully claiming a child tax credit for [E.B.]
for purposes to defraud and interfere with [Martinez's]
tax returns & custody rights in violation of [the
UCCJEA], The Fraudulent filing of information on Federal tax
returns pursuant to Internal Revenue [C]ode of 1986 as
amended Public Law 104-168 Title VI sec. 601(a), 26 USC 7434,
26 USC 24 (child Tax Credit).
for Inj. Relief Mem. of Law in Supp. at 1 (alterations to
original). Martinez requests that the court order (1) Berrios
to pay $175.00 per day for every day that she does not return
E.B. to him, and (2) the IRS to release payment on his tax