Opinion
CASE NO: 8:03-v-2520-T-26TGW
April 2, 2004
ORDER
Before the Court are Defendants' Motion to Dismiss Amended Complaint and Memorandum in Support and Plaintiff's Objections to the motion. Upon due consideration of the parties' submissions, as well as the well-pleaded allegations of Plaintiff's amended complaint, the Court is of the opinion that the motion is due to be granted and this case dismissed with prejudice for failure to state a claim upon which relief may be granted.
See dockets 17, 18 20.
In evaluating Plaintiff's amended complaint, the Court has taken into account his pro se status, has afforded him the benefit of a very liberal construction of his complaint, and has subjected the complaint to less exacting scrutiny than one drafted by an attorney.
On February 3, 2004, this Court entered an order dismissing Plaintiff's original complaint without prejudice. The Court reasoned that because the causes of action Plaintiff alleged in his complaint against Defendant Quimby were premised on Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct 1999, 29 L.Ed.2d 619 (1971), and because the overwhelming weight of authority did not recognize a Bivens action against employees of the Internal Revenue Service such as Defendant Quimby for assessment and collection activities, Plaintiff's complaint had to be dismissed. The Court, in recognition of Plaintiff's pro se status, allowed him to file an amended complaint which he has done.
See docket 10.
As Defendants correctly point out, there is no substantive difference between Plaintiff's original complaint and his amended complaint, except that Plaintiff has now added the United States as a named party Defendant. Interestingly, however, Plaintiff claims in his Objections that "Defendant Quimby. (sic) is the only party being sued in this action . . ." Given this disclaimer, it becomes clear then that because there is no meaningful difference between Plaintiff's original complaint and his amended complaint, and because the amended complaint suffers from the same infirmities as the original legally available, the Motion to Dismiss Amended Complaint is due to be granted and the amended complaint dismissed with prejudice for failure to state a claim upon which relief may be granted. ACCORDINGLY, it is ORDERED AND ADJUDGED as follows:
Compare docket 1 with docket 13.
See docket 21, page V, paragraph 7.
The Court adopts by reference the legal authorities cited in its order if dismissal entered February 3, 2004, and round at docket 10.
In light of this determination, the Court need not reach the other contentions advanced by Defendants in support of dismissal. Nor will the Court grant Plaintiff leave to file still another amended complaint because it is clear that he simply cannot state a valid claim for relief against Defendant Quimby.
1) Defendants' Motion to Dismiss Amended Complaint (Dkt. 17) is granted.
2) Plaintiff's amended complaint is dismissed with prejudice.
3) The Clerk is directed to enter judgment for Defendants and to close this case.
DONE AND ORDERED.