ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

URSULA UNGARO-BENAGES, United States District Judge

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss, filed June 14, 2001.

THE COURT has considered the Motion, the pertinent portions of the record, and is otherwise fully advises of the premises. On April 19, 2001, Plaintiffs filed an Amended Complaint alleging that Defendants, by engaging in the collection of income taxes, conspired under 42 U.S.C. § 1985 to deprive them of their "Guaranteed Inalienable Constitutional Rights pursuant to the Excluding Indians Not Taxed clausula of Article I, Section 2, Paragraph 3; Amendment IV; Witness Against Himself clausula of Amendment V; Nor be Deprived of Life, Liberty, or Property, Without Due Process of Law clausula of Amendment V; and Amendment IX, of or to the Constitution of the United States." Am. Compl. ¶¶ 18-26. Furthermore, Plaintiffs allege that Defendants caused them to suffer severe emotional distress.

Defendants now move to dismiss the Amended Complaint on the ground that Plaintiffs have failed to state a claim upon which relief may be granted and this action is barred by sovereign immunity. In addition, the individual Defendants move to dismiss on the ground of qualified immunity and insufficiency of service of process under Fed.R.Civ.P. 12(b)(5). Plaintiffs filed a Motion to Dismiss Defendants' Motion to Dismiss, which the Court will construe as a Response to Defendants' Motion. Thereafter, Defendants filed a Reply memorandum.

LEGAL STANDARD

On a motion to dismiss the Court must view the complaint in the light most favorable to the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969), and may grant the motion only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Bradberry v. Pinnellas County, 789 F.2d 1513, 1515 (11th Cir. 1986). See also Fed.R.Civ.P. 8(a) (requiring "a short and plain statement of the claim showing that the pleader is entitled to relief."). Moreover, the Court must, "at this stage of the litigation, . . . accept [the plaintiff's] allegations as true." Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Stevens v. Dept of Health and Human Services, 901 F.2d 1571, 1573 (11th Cir. 1990). Thus, the inquiry focuses on whether the challenged pleadings "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley, 355 U.S. at 47.

BACKGROUND

For the purposes of this Motion, the following facts are accepted as true. Plaintiffs are Moorish-American Aborigine of Cherokee Indian Descent, a Free Regnatrix National Continental United States Citizens. Am. Compl. ¶¶ 2-3. Antonio Chavez and Alvaro Collazos are Internal Revenue Service officers in Plantation, Florida. Linda Oden is the group manager and Julie Garcia is the branch chief of the Plantation office. Id. ¶¶ 4-7.

On November 26, 1997, Mr. Curry-Bey appeared in response to two summons issued by Defendant Collazo. At the hearing, Mr. Curry-Bey presented to Collazos one Affidavit of Constitutional Immunity for Mrs. Curry-Bey, and one for himself. Id. ¶ 18. On November 28, 1998, Defendant Chavez commenced the process of levy on Mrs. Curry-Bey' s property by sending notices of levy to the United States Postal Service and the Miami Postal Service Credit Union. Id. ¶ 9.

On December 4, 1998, both Plaintiffs met with Defendant Oden and presented her with a copy of Mrs. Curry-Bey's Affidavit of Constitutional Immunity dated November 26, 1997. Oden released all levies pending the execution of a financial statement. Id. ¶ 10.

On December 21, 1998, Mr. Curry-Bey delivered to Oden the following documents of Mrs. Curry-Bey: (A) Affidavit of Exemption from Withholding; (B) Financial Affidavit; (C) Declaration of the Unconstitutionality of Any Levy Upon My Property; (D) Power of Attorney. Id. ¶ 11.

On January 5, 1999, Defendant Chavez sent out another notice of levy. Id. ¶ 12. On January 7, 1999, Defendant Chavez filed a notice of federal tax lien in the amount of $19,741.77, against Mrs. Curry-Bey.

On January 11, 1999, both Plaintiffs met with Defendant Collazo and demanded to speak to the branch chief. Defendant Collazos then contacted Defendant Garcia on the telephone. Plaintiffs informed Defendant Garcia of their tax-exempt status and the financial hardship created by the levies. Defendant Garcia refused to release the levies and insisted they execute IRS forms 433-A and 911. Id. ¶¶ 13-14.

On January 14, 1999, both Plaintiffs met with Cindy Calabrese, problem resolution office manager. Due to the economic duress created by the levies, the Plaintiffs answered financial questions and signed IRS form 433-A. Id. ¶ 15. In addition, both Plaintiffs agreed to execute IRS forms 1040. Consequently, all levies were released. On February 20, 1999, the Plaintiffs mailed their executed IRS forms 1040, covering the years 1990 through 1998 to Calabrese. On September 27, 1999, the IRS assessed a $500.00 penalty against Mr. Curry-Bey for both tax years 1996 and 1997. Id. ¶¶ 16-17.

LEGAL ANALYSIS

Plaintiffs bring this action against the United States, Chavez, Collazos, Oden and Garcia pursuant to 42 U.S.C. § 1985 alleging violations of the Fourth, Fifth and Ninth Amendments of the Constitution because Defendants (1) caused notices of levy to be served with respect to property owned by Mrs. Curry-Bey; (2) filed a notice of federal tax lien against Mrs. Curry-Bey; (3) required Plaintiffs to answer questions about their financial condition and sign an IRS form 433-A (financial statement); and (4) required them to execute income tax returns. Plaintiffs also bring a claim for severe emotional distress.

(1) Constitutional Claims Against Individual Defendants

Plaintiffs allege that the individual Defendants deprived them of their constitutional rights and seek damages for the alleged deprivation. The Amended Complaint, however, fails to clearly state whether Plaintiffs are suing the individual Defendants in their individual or official capacities. In Plaintiffs' response they state that the individual Defendants are being sued in their official capacities as IRS agents. Resp. at 3. It is firmly established that actions against government employees who are acting in their official capacity constitute suit against the United States. Mcllwain v. United States., No. 94-1036-CIV-ORL-19, 1995 WL 218572, *1 (M.D. Fla. Jan. 9, 1995). Accordingly, Plaintiffs' claims against the individual Defendants acting in their official capacity will be dismissed.

Although the Plaintiffs have not indicated their intent to sue the individual Defendants in their individual capacity, the Court will nevertheless consider these claims. In this regard, the allegations in Plaintiffs' Amended Complaint for deprivation of their constitutional rights may be construed as seeking to raise a Bivens claim against the IRS employees in their individual capacities. Rosado v. Curtis, 885 F. Supp. 1538, 1542-43 (M.D. Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996). In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court recognized an implied cause of action under the Constitution against federal employees for violation of constitutional rights. Courts, however, have repeatedly held that a Bivens remedy should not be available for damages against agents of the Internal Revenue Service for assessment and collection activities. The reason is that Congress has created adequate procedures to address any constitutional violations that may occur in the course of assessing and collecting taxes. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) (noting when Congress has provided adequate remedies, courts will not create additional Bivens remedies); Vennes v. Unknown Number of Unidentified Agents, 26 F.3d 1448, 1454 (8th Cir. 1994) (recognizing that Congress provided explicit and meaningful procedures to challenge collection and assessment activities); Christensen v. McGovern, 916 F.2d 1462, 1476 (10th Cir. 1990) (citing Bush v. Lucas, 462 U.S. 367, 388-90 (1990)); Oth v. Thomas, No. 97-14110, 1997 WL 1037866, at * 1-2 (S.D. Fla. June 25, 1997); Rosado, 885 F. Supp. at 1542-43.

In this case, Plaintiffs' claims stem from the IRS employees' activities in assessing taxes, filing notices of federal tax lien, levying against the property of Mrs. Curry-Bey, and requiring Plaintiffs to answer questions about their financial condition and sign an IRS form 433-A (financial statement). Accordingly, to the extent that Plaintiffs bring this action against the IRS employees for their tax assessment and collection activities, the Court declines to create a Bivens remedy. See Chilicky, 487 U.S. at 412; Vennes, 26 F.3d at 1454.

The Court further notes that a number of courts have declined to recognize a Bivens claim for asserted Fifth Amendment violations. See National Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989) (finding it inappropriate to recognize a Bivens remedy with respect to claims that IRS employees violated the Fifth Amendment and various provisions of the Internal Revenue Code); Tonn v. United States, 847 F. Supp. 711, 717-18 (D. Minn. 1993), aff'd sub nom. Tonn v. Forsberg, 27 F.3d 1356 (8th Cir. 1994); Hefti v. McGrath, 784 F. Supp. 1426, 1431 (E.D. Mo. 1992).

Even if it was appropriate to recognize a Bivens action in this case, all of the individual Defendants would be immune from liability for any violations of Plaintiffs' procedural or substantive due process rights under the doctrine of qualified immunity. A public official is entitled to immunity when his or her conduct is objectively reasonable as measured by reference to law clearly established at the time of the incident in question. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Initially, a plaintiff must show that a law is "clearly established," i.e., a plaintiff must make a particularized showing that a "reasonable official" would understand that what he is doing violated one of plaintiffs constitutional rights. Anderson v. Creighton, 483 U.S. 635, 640 (1987) (stating "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right"). Plaintiffs have failed to allege that the individual Defendants acted outside the scope of their official duties or violated any of Plaintiffs' constitutional rights, let alone clearly established constitutional rights. The individual Defendants are employees of the IRS and as such are required by statute to collect taxes. 26 U.S.C. § 6301. Rosado v. Curtis, 885 F. Supp. 1538, 1544 (M.D. Fla. 1995); Yalkut v. Gemignani, 873 F.2d 31, 35 (2d Cir. 1989) (noting that the Internal Revenue Code provides for collecting assessed taxes by levy pursuant to 26 U.S.C. § 6331 and that the authority to levy had been delegated to defendant IRS agents through 26 C.F.R. § 301.6331-1). Accordingly, the Court finds that the individual Defendants are entitled to qualified immunity for their actions in this suit.

Plaintiffs also contend that the individual Defendants violated their constitutional right against self-incrimination by requiring them to complete income tax returns (form 1040) and to fill out forms disclosing their financial information (form 433-A). Plaintiffs allege they completed the forms "due to the economic duress created by the levies." Am. Compl. ¶ 15.

In Hoffman v. United States, 341 U.S. 479 (1951), the Supreme Court enunciated the standard for measuring when a witness may properly claim his right against self-incrimination, and thus refuse to respond to questioning.

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.

Applying this standard, the Court finds that Plaintiffs cannot state a claim for violation of their right against self-incrimination by asserting a blanket refusal to complete income tax returns and disclose financial information. Their Fifth Amendment privilege must be claimed with respect to particular questions. Id. Accordingly, the Court finds Plaintiffs have failed to state a claim for violation of their Fifth Amendment privilege against self incrimination.

Likewise, Plaintiffs have not alleged a valid claim for financial duress. The prima facie elements for a claim of financial duress are (1) wrongful acts or threats; (2) financial duress caused by the wrongful threats or acts; and (3) absence of a reasonable alternative to the terms of the wrongdoer. Sonnleitner v. Commissioner, 598 F.2d 464, 468 (5th Cir. 1979). Plaintiffs have failed to allege the individual Defendants made any wrongful threats or acts. The individual Defendants statement of intention to seek a legal remedy (levy or lien) is not duress. Burnet v. Chicago Ry. Equip. Co., 282 U.S. 295 (1931); Friedman v. Bache Co., 321 F. Supp. 347 (S.D. Fla. 1970), aff'd, 439 F.2d 349 (5th Cir. 1971) (noting it is well established that duress cannot be predicated upon a threat or the performance of an act which a person has a lawful right to perform and duress is not established merely by proof that consent was secured by the pressure of financial necessity or circumstances of the person seeking to assert it).

Next, Plaintiffs claim that they are entitled to "tax exempt" status pursuant to their "Guaranteed Inalienable Constitutional Rights pursuant to the Excluding Indians Not Taxed clausula of Article I, Section 2, Paragraph 3." This section of the Constitution upon which Plaintiffs rely has been amended by section 2 of the Fourteenth Amendment and the Sixteenth Amendment. The phrase "excluding Indians not taxed," however, remains in the Fourteenth Amendment. Notwithstanding Plaintiffs' contentions, this language does not exempt Indians from taxes or the requirements to file tax returns. Rather, Section 2 of the Fourteenth Amendment prescribes the method for apportioning congressional representatives among the states based on "counting the whole number of persons in each State, excluding Indians not taxed."

As for Plaintiffs' contention that as Indians they are tax exempt, the Internal Revenue Code subjects the income of "every individual" to tax. It is axiomatic that a general Act of Congress applying to all persons includes Indians and their property interests. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). Because the Internal Revenue Code is a general Act of Congress, it follows that Indians are subject to payment of federal income taxes, as are other citizens, unless an exemption from taxation can be found in the language of a Treaty or Act of Congress. Squire v. Capoeman, 351 U.S. 1, 6 (1956); Superintendent of Five Civilized Tribes for Sandy Fox, Creek No. 1263 v. Commissioner, 295 U.S. 418 (1935); Choteau v. Burnet, 283 U.S. 691 (1931). Plaintiffs have not pointed to either an Act of Congress or a treaty to support their claim that they are tax exempt. Accordingly, the Court finds that Plaintiffs have failed to state a claim upon which relief can be granted.

Lastly, Plaintiffs bring an unspecified claim under the Ninth Amendment of the Constitution. The Ninth Amendment states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Plaintiffs, however, do not cite any unenumerated right on which they base their Ninth Amendment claim. Parham v. Lamar, I F. Supp.2d 1457, 1461 (M.D. Fla. 1998). Courts that have considered Ninth Amendment arguments with respect to tax claims have ruled that there is no Ninth Amendment protection from the particular tax law complained of by the taxpayers. Kindred v. Commissioner, 39 T.C.M. (CCH) 490 (1979); Tingle v. Commissioner, 73 T.C. 816, 817 (1980). Thus, the Court finds that Plaintiffs have failed to state a claim with sufficient specificity for a violation of the Ninth Amendment of the Constitution.

(2) Section 1985 Claims

Plaintiffs claim the conduct of the Defendants is made actionable by 42 U.S.C. § 1985. Although Plaintiffs have failed to indicate which subsection within § 1985 applies to Plaintiffs' claims, Plaintiffs allege a conspiracy to deprive them of their property. Consequently, the Court construes Plaintiffs' Amended Complaint as an attempt to state a claim under § 1985(3). See 42 U.S.C. § 1985 (3)(1988) (referring to conspiracy to deprive persons of rights or privileges). However, Plaintiffs fail to sufficiently allege the existence of a conspiracy to interfere with civil rights or present facts to support such a claim. Rosado v. Curtis, 885 F. Supp. 1538, 1541-42 (M.D. Fla. 1995). In addition, Plaintiffs fail to allege a class-based discriminatory motive on the part of the conspirators. Accordingly, Plaintiffs fail to state a claim for relief under § 1985(3). See Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir. 1992) (identifying the elements of a cause of action under § 1985(3) to include (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States; and stating that the second element requires a showing of a racial or otherwise class-based, invidious discriminatory animus behind the conspirator's action); Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir. 1981).

Viewing the factual allegations in the light most favorable to the Plaintiffs, as the Court must at this stage of the litigation, the Court finds that Plaintiffs can prove no set of facts which would entitle them to relief against the individual Defendants acting in the individual capacity. In this respect, each IRS Defendant is entitled to qualified immunity from suit for the conduct alleged. Thus, the claims against the employees of the Internal Revenue Service will be dismissed for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). See also Christensen, 916 F.2d 1462, 1476-77; Oth v. Thomas, No. 97-14110, 1997 WL 1037866, at * 1-2 (S.D. Fla. June 25, 1997) (dismissing § 1985(3) and constitutional claims against IRS agents for failure to state a claim upon which relief could be granted).

(3) Claims Against the United States

Plaintiffs have also brought claims against the United States for violation of their constitutional rights arising from the illegal collection and assessment of taxes against them. The United States, however, is immune from suit unless it has expressly waived its immunity and has consented to suit. See United States v. Shaw, 309 U.S. 495, 500-01 (1940). In this respect, the Plaintiffs bear the burden of showing that the Government has waived its sovereign immunity. See Sopcak v. Northern Mountain Helicopter Service, 52 F.3d 817, 818 (9th Cir. 1995). Although the United States has waived its immunity under the Federal Tort Claims Act (FTCA) in some regards, 28 U.S.C. § 2671-2680, the FTCA specifically excludes any claim arising with respect to the assessment or collection of any tax. See 28 U.S.C. § 2680(c) (1988); see also Young v. I.R.S., 596 F. Supp. 141, 147 (N.D. Ind. 1984) (noting that the United States has specifically reserved its immunity with regard to claims arising out of tax assessment and collection). Plaintiffs bring their constitutional claims under 26 U.S.C. § 7422 and 7433. These provisions, however, do not waive the Government's sovereign immunity for the types of constitutional violations alleged in Plaintiffs' Amended Complaint.

(4) Service of Process

The individual Defendants also move to dismiss this action because Plaintiffs improperly served them process by certified mail. Fed.R.Civ.P. 4(e) provides that service of process may be effected as provided for under state law, or personally, or by leaving a copy of the summons and complaint at the defendant's "dwelling house or usual place of abode with some person of suitable age and discretion then residing therein," or by serving an agent authorized by appointment or by law to receive service of process. There is no provision for service of process on an individual by certified mail.

In response, Plaintiffs contend that the individual Defendants are being sued in their official capacity. Fed.R.Civ.P. 4(i)(2) provides that service of an employee sued only in their official capacity is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the employee. Assuming that Plaintiffs are only suing the individual Defendants in their official capacity, the Court finds that they were properly served with process by certified mail.

(5) Severe Infliction of Emotional Distress

Plaintiffs also claim that Defendants caused them to suffer severe emotional distress. In Florida, the elements necessary to establish a cause of action for intentional infliction of emotional distress are: (1) the wrongdoer's conduct must be intentional or reckless; i.e., the wrongdoer intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous; i.e., the conduct went beyond all bounds of decency and was regarded as atrocious and utterly intolerable in a civilized community; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. Hart v. United States, 894 F.2d 1539, 1548 (11th Cir. 1990) (citations omitted)). See also Food Lion, Inc. v. Clifford, 629 So.2d 201, 202 (Fla.Dist.Ct.App. 1993) (citing Williams v. City of Minneola, 619 So.2d 983, 986 (Fla.Dist.Ct.App. 1993)).

To define "outrageous," Florida courts rely on the Restatement (Second) of Torts:

Liability has been found only where the conduct been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "outrageous!"

Viewing the factual allegations in the light most favorable to the Plaintiffs, as the Court must at this stage of the litigation, the Court finds that Plaintiffs have failed to state a claim for severe infliction of emotional distress. In this regard, Plaintiffs have not alleged any facts tending to show that the Defendants' actions were outrageous or that their emotional distress was severe. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendants' Motion to Dismiss is GRANTED. Plaintiffs' Amended Complaint is DISMISSED with prejudice against Chavez, Collazos, Oden, Garcia and the United States.