Opinion
CIVIL 3:21-CV-1283
07-13-2022
UNITED STATES OF AMERICA, Plaintiff, v. JOHN MICHAEL KISTLER, JR., Defendant.
Mariani Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Factual Background and Procedural History
It has been said that “[t]axes are what we pay for civilized society.” Compania Gen. de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100, 48 S.Ct. 100, 105, 72 L.Ed. 177 (1927) (Holmes, J., dissenting). Yet, for as long as there have been taxes, there have been those who seek to avoid this cost of civilized society. The means by which individuals attempt to avoid this legal duty have been many and varied, but for some the illusory appeal of various tax protester rationales has presented a legal siren song, luring litigants to a tragic end. As one court has aptly observed on this score:
Like moths to a flame, some people find themselves irresistibly drawn to the tax protestor movement's illusory claim that there is no legal requirement to pay federal income tax. And, like the moths, these people sometimes get burned.United States v. Sloan, 939 F.2d 499, 499-500 (7th Cir. 1991).
So it is here.
This is an action brought by the United States which seeks to reduce various federal income tax assessments to judgment. (Doc. 1). The defendant, John Kistler, is proceeding pro se in this action. This case was referred to the undersigned on June 21, 2022.
The government's civil complaint presents a simple, straightforward factual narrative. According to the United States, between 2008 and 2012, the Internal Revenue Service made a series of tax assessments against the defendant, John Kistler. (Doc. 1, ¶ 7). The IRS provided Kistler with timely notice and demands for payment of these assessments, but he has failed to pay the amounts due and owing on the assessments. (Id., ¶¶ 9-10). Accordingly, the IRS requests that its unpaid tax assessments be reduced to judgment. (Id.)
In stark contrast to the United States' linear narrative, Mr. Kistler, as the pro se architect of his own defense, has followed a more eccentric, elliptical, erratic, and enigmatic course in resisting this effort to reduce his tax assessments to judgment. Kistler's idiosyncratic approach to this litigation was evident from the outset in the manner in which Kistler refers to himself throughout his pleadings. Kistler consistently signs his pleadings “without prejudice” under the Uniform Commercial Code, embracing the U.C.C. in some talismanic fashion as a shield against tax liability, and identifies himself as “John Michael, Jr., of the family Kistler.”
On their merits, Kistler's filings consist of a curious confection of claims and concepts. At the outset, it appears that Kistler is resisting this lawsuit by suggesting that taxes are voluntary; that the IRS and federal government are artificial persons or foreign entities; and that the Eleventh Amendment to the United States Constitution forbids federal income taxation. In addition, Kistler appears to lodge some largely undefined hearsay objection to the IRS's tax assessments. (Doc. 66). However, notably lacking from Kistler's pleadings is any competent evidence challenging the accuracy of those assessments.
In addition, Kistler has filed a series of third-party complaints against various banks, employers, and individuals. (Docs. 25-32). Kistler's reliance upon unintelligible tax protestor rhetoric leaves the meaning of these third-party complaints quite obscure. In fact, these third-party complaints consist largely of a polemic leveled against the IRS, a harangue grounded in discredited tax protester theories. (Id.) However, to the extent that the third-party complaints can be understood, it appears that Kistler may be asserting that the third-party defendants' compliance with IRS tax levies made them members of some broad, amorphous conspiracy against the plaintiff. (Id.) On the basis of this sweeping assertion, Kistler demands $40,000,000 in damages from the third-party defendants. (Id.)
With the issues in this case framed in this fashion by the parties' pleadings, this case comes before us for consideration of a battery of pretrial motions. These motions include a motion for summary judgment filed by the United States, (Doc. 52); a motion filed by Kistler to “remand” this case to a court which has never entertained this lawsuit, the U.S. Tax Court, (Doc. 68); a separate motion by Kistler styled as a motion for conditional acceptance of an Offer in Compromise, (Doc. 74); and four motions to dismiss Kistler's third-party complaints filed by the various third-party defendants. (Docs. 50, 53, 54, and 55).
We have previously issued a Report and Recommendation addressing the United States' motion for summary judgment and Kistler's motions to remand and for an offer in compromise. In this Report and Recommendation, we turn to the motions to dismiss Kistler's third-party complaints filed by the various third-party defendants. (Docs. 50, 53, 54, and 55). Upon consideration, for the reasons set forth below, it is recommended that these motions be granted and these third-party complaints be dismissed.
II. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the court of appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
When considering the sufficiency of third-party complaints like those filed here by Kistler, several other factors specific to federal third-party practice must also be taken into account. For example, it is well settled that:
Rule 14(a) provides in pertinent part that “a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.”
A third-party claim may be asserted under Rule 14(a) only when the third-party's liability is in some way dependent on the outcome of the main claim or when the third-party is secondarily liable to defendant. If the claim is separate or independent from the main action, impleader will be denied.
C.A. Wright, A. Miller, M.K. Kane, Federal Practice and Procedure, Vol. 6, § 1446, at 355-58 (1990).F.D.I.C. v. Bathgate, 27 F.3d 850, 873 (3d Cir. 1994). Thus, in order to be legally sufficient:
[A third-party complaint] must set forth a claim of secondary liability such that, if the third-party plaintiff is found liable, the third-party defendant will be liable to him/her under a theory of indemnification, contribution or some other theory of derivative liability recognized by the relevant substantive law. Any third-party complaint which does not facially meet this test is
not proper under Rule 14 and thus falls outside of this Court's ancillary jurisdiction.
Toberman v. Copas, 800 F.Supp. 1239, 1242 (M.D.Pa.1992) (citations omitted); see also FDIC v. Bathgate, 27 F.3d 850, 873 (3d Cir.1994) (“A third-party claim may be asserted under Rule 14(a) only when the third-party's liability is in some way dependent on the outcome of the main claim or when the third-party is secondarily liable to defendant.”); Ronson v. Talesnick, 33 F.Supp.2d 347, 356 (D.N.J.1999) (“A third-party complaint that does not make a facial showing of secondary liability will not be entertained by the court.”); Damar, Inc. v. Advanced Global Design, Inc., No. 98-3435, 1998 WL 967549, at *1 (E.D.Pa. Nov.19, 1998) (finding that third-party complaint that alleged torts committed by third-party defendant, but no allegations of secondary liability, could not be maintained under Rule 14); Lawyer's Title Ins. Co. v. Suburban Abstract Assoc., L.P., No. 94-6127, 1995 WL 321885, at *1 (E.D.Pa. May 25, 1995) (“First and foremost, a third-party complaint must seek relief under a theory of secondary or derivative liability.”).Santana Prod., Inc. v. Bobrick Washroom Equip., Inc., 69 F.Supp.2d 678, 690 (M.D. Pa. 1999).
It is against these legal benchmarks that we assess Kistler's third-party complaints.
B. These Third-party Complaint Should Be Dismissed.
Judged against these legal guideposts, Kistler's third-party complaints fail as a matter of law for at least four reasons.
1. The Third-Party Complaints Violate Rule 14.
First, Kistler's third-party complaints violate Rule 14 in that the third-party complaints simply fail to state a claim against these third-party defendants that is derivative from the IRS's claim against Kistler. Simply put, Kistler's tax liability to the United States is entirely a result of his own actions and inactions. Nothing that Kistler has alleged in these third-party complaints provides a legal or factual basis for holding the third-party defendants derivatively liable for Kistler's tax claims in such a way that Kistler would be entitled to have the third-party defendants defray his tax liabilities. In fact, Kistler's third-party complaints' prayers for relief conclusively show that he is not advancing a directly derivative claim, as he is required to do under Rule 14. Kistler's tax liability to the IRS, including principal, penalties, and interest is approximately $80,000. If his claims against the third parties were derived from this main claim, one would anticipate that the third-party complaints would seek a like amount from these third-party defendants. Yet, Kistler's prayer for relief in his third-party complaints is $40,000,000, some 500 times greater than his alleged tax liability. Since these third-party complaints do not facially meet Rule 14's test for derivative liability, Kistler's efforts to implead these parties as defendants fail as a matter of law and these third-party complaints should be dismissed.
2. The Third-Party Complaints Violate Rule 8.
This threshold deficiency in Kistler's pleadings, in turn, highlights a more fundamental flaw in these third-party complaints. To the extent that Kistler's third part complaints substitute anger for analysis, fury for facts, and enmity for evidence, they violate Rule 8's basic injunction that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). It is well settled that: “[t]he Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' and that each averment be ‘concise, and direct.'” Scibelli v. Lebanon County, 219 Fed.Appx. 221, 222 (3d Cir. 2007) (quoting Fed.R.Civ.P. 8(a)(2), (e)(1)). Thus, when a complaint is “illegible or incomprehensible[,]” id., or when a complaint “is not only of an unwieldy length, but it is also largely unintelligible[,]” Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 Fed.Appx. 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 Fed.Appx. 513 (3d Cir. 2008); Stephanatos, 236 Fed.Appx. 785; Scibelli v. Lebanon County, 219 Fed.Appx. 221 (3d Cir. 2007); Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005).
Dismissal under Rule 8 is also proper when a complaint “left the defendants having to guess what of the many things discussed constituted [a cause of action],” Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158 (3d Cir. 2011), or when the complaint is so “rambling and unclear” as to defy response. Tillio v. Spiess, 441 Fed.Appx. 109 (3d Cir. 2011). Similarly, dismissal is appropriate in “those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Tillio v. Spiess, 441 Fed.Appx. at 110 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted)); Tillio v. Northland Grp. Inc., 456 Fed.Appx. 78, 79 (3d Cir. 2012). Further, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 Fed.Appx. 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 Fed.Appx. 205 (3d Cir. 2010); Earnest v. Ling, 140 Fed.Appx. 431 (3d Cir. 2005) (dismissing complaint where “complaint fails to clearly identify which parties [the plaintiff] seeks to sue”); Oneal v. U.S. Fed. Prob., Civ. No. 05-5509, 2006 WL 758301 (D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, Civ. No. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
Here, Kistler's third-party complaints are devoid of any factual averments which would support his $40,000,000 claim against these third-party defendants. Therefore, these pleadings leave “the defendants having to guess what of the many things discussed constituted [a cause of action],” Binsack, 438 Fed.Appx. at 158. On these facts, dismissal of the third part complaints is also warranted under Rule 8.
3. The Third-Party Defendants Cannot Be Held Liable for Complying with a Tax Levy.
Moreover, to the extent that they can be understood, Kistler's third-party complaints seem to assert that the third-party defendants indulged in some form of illicit conspiracy against him when they complied with IRS tax levies. This assertion, which is the gravamen of Kistler's third-party claims, fails for a single, simple reason. Far from being culpable to Kistler due to their compliance with tax levies, the third-party defendants are actually immune from any civil liability for their actions.
Congress has specifically conferred immunity on persons and entities that comply with tax levies in 26 U.S.C. § 6332(e), which provides that:
Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary (or who pays a liability under subsection (d)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.26 U.S.C.A. § 6332 (e) (emphasis added).
Given this clear grant of statutory immunity, courts have repeatedly rebuffed efforts by delinquent tax payers like Kistler to hold third parties liable for complying with tax levies. See e.g., Lanier v. Wachovia Bank, No. CIV.A.2:09CV4566WY, 2010 WL 1141267, at *1 (E.D. Pa. Mar. 24, 2010); Schulze v. Legg Mason Wood Walker, Inc., 865 F.Supp. 277, 285 (W.D. Pa. 1994). Further, it is well settled that:
Immunity under § 6332(e) has been interpreted generously, Farr v. United States, 990 F.2d 451, 456 (9th Cir.1993), and courts have held it applies whether or not the underlying levy is valid, see Moore v. General Motors Pension Plans, 91 F.3d 848, 851 (7th Cir.1996).Weissman v. U.S. Postal Serv., 19 F.Supp. d 254, 260 (D.N.J. 1998). Therefore, a dispute regarding the validity of the tax lien, standing alone, does not vitiate the immunity of those who comply with what appears to be a facially valid lien. Instead, “section 6332(e) provides such third parties with expansive immunity from liability to the taxpayer with respect to the levied property.” In re Cooper, 542 F.Supp.2d 382, 387 (D.N.J. 2008).
Further, courts have specifically considered, and rejected, Kistler's claim that this immunity only extends to tax levies issued by courts. Quite the contrary, it is well recognized that the IRS frequently issues what are called administrative levies, and it is clear that:
The administrative levy “does not require any judicial intervention.” United States v. Rodgers, 461 U.S. 677, 682-683, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983); Barnard v. Pavlish, No. 97-CV-0236, 1998 WL 247768, at *2 (M.D.Pa. Mar.30, 1998) (administrative levy does not require any “court authorization”), affd, 187 F.3d 625 (3d Cir.1999). “The IRS need never go into court to assess and collect the amount owed; it is empowered to collect the tax by non-judicial means (such as levy on property or salary, 26 U.S.C. §§ 6331, 6332), without having to prove to a court the validity of the underlying tax
liability.” United States v. Baggot, 463 U.S. 476, 103 S.Ct. 3164, 77 L.Ed.2d 785 (1983).Lanier, 2010 WL 1141267, at *3. Therefore, persons who comply with administrative levies remain entitled to this statutory immunity. Id. As the Third Circuit has held in this setting “[a] third-party who honors the levy and surrenders the property has no liability to the delinquent taxpayer.” Cong. Talcott Corp. v. Gruber, 993 F.2d 315, 318 (3d Cir. 1993). Indeed, any other interpretation of § 6332(e) would place these third parties in an impossible dilemma. They would be “forced to negotiate between the Scylla of IRS fury and the Charybdis of taxpayer vengeance every time a levy is made.” Weissman, 19 F.Supp.2d at 261.
Since § 6332(e) confers immunity upon all of these third-party defendants for their actions complying with IRS levies, Kistler simply cannot hold these third-party defendants civilly liable for performing their legal duty to honor these tax levies, and his third-party complaints fail as a matter of law.
4. Kistler's Remaining, Largely Unarticulated, Claims Fail.
Finally, while Kistler's third-party complaints contain sweeping, but enigmatic, claims of fraud, conspiracy, and constitutional infractions, none of these cursory claims can save these otherwise profoundly flawed pleadings. At the outset, Kistler has failed to properly plead any fraud claims in this case where the third-party defendants merely complied with IRS tax levies. Kistler's fraud claims fail since:
[Allegations of fraud must comply with Federal Rule of Civil Procedure 9(b), which requires that allegations of fraud be pled with specificity. See Saporito, 843 F.2d at 673. In order to satisfy Rule 9(b), plaintiffs must plead with particularity “the ‘circumstances' of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984).Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004). Given this heightened pleading standard demanded by Rule 9, Kistler's third-party complaints utterly miss the mark. Except for the allegation that the third-party defendants complied with tax levies, as they are required to do, there simply are no specific and well-pleaded facts establishing any form of fraud.
Kistler also errs when he suggests that he can bring federal civil rights actions against various banks based upon their compliance with federal tax laws. On this score, to the extent that Kistler is relying upon the general federal civil rights statute, 42 U.S.C. § 1983, in order to maintain a claim, a plaintiff must plead two elements: (1) deprivation of a constitutional right or violation of federal law, and (2) that the constitutional deprivation was caused by a person acting under the color of state law. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008); see also West v. Atkins, 487 U.S. 42, 47, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The requirement of state action is a “threshold issue” in cases brought under section 1983, Bailey v. Harleysville National Bank & Trust, 188 Fed.Appx. 66, 67 (3d Cir. July 18, 2006), because “there is no liability under § 1983 for those not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995). Likewise, a Bivens action, which is the federal equivalent of the § 1983 cause of action against state actors, will only lie where the defendant has violated the plaintiff's rights under color of federal law. Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001).
The requirement that a defendant act under color of law in order to give rise to constitutional tort liability is fatal to Kistler's constitutional tort claims against these banks and private parties who complied with IRS levies since:
[T]he Third Circuit Court of Appeals has repeatedly found that constitutional claims brought against banks fail as a matter of law because banks and their employees do not qualify as state actors. See Brookhart v. Rohr, 385 Fed.Appx. 67, 68 (3d Cir.2010) (dismissing appeal from order that dismissed allegations of unconstitutional conduct by private parties in state court foreclosure proceedings because the parties were not state actors); James v. Heritage Valley Fed. Credit Union, 197 Fed.Appx. 102, 106 (3d Cir.2006) (defendant credit union not a state actor for purposes of section 1983); Awala v. Wachovia Corp., 156 Fed.Appx. 527, 528 (3d Cir.2005) (bank held not to be a state actor merely because it operates within a regulated industry).Swope v. Nortumberland Nat. Bank, No. 4:13-CV-2257, 2014 WL 4716944, at *5 (M.D. Pa. Sept. 22, 2014), affd sub nom. Swope v. Northumberland Nat. Bank, 625 Fed.Appx. 83 (3d Cir. 2015).
Kistler cannot save these otherwise infirm constitutional tort claims by vaguely cloaking them in some conspiratorial rubric. In this regard, it is axiomatic that “[a] claim for civil conspiracy ‘cannot be pled without also alleging an underlying tort.' ” McGreevy v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005) (quoting Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 405 (3d Cir. 2000)). See Gosse v. Transworld Sys. Inc., No. 3:20-CV-1446, 2021 WL 5761733, at *7 (M.D. Pa. July 13, 2021). Here, Kistler's pleadings completely fail to articulate any actionable underlying tort. In the absence of a well-pleaded substantive claim, these conspiratorial averments also fail and should be dismissed.
We thus conclude as we began. For Kistler, as for all Americans, “[t]axes are what we pay for civilized society.” Compania Gen. de Tabacos de Filipinas, 275 U.S. at 100. (Holmes, J., dissenting). And, like a moth to a flame, Kistler's apparently irresistible attraction to the tax protester movement's illusory rhetoric now leaves the defendant burned. United States v. Sloan, 939 F.2d 499, 499-500 (7th Cir. 1991). In this case, Kistler cannot evade his duty as a citizen to pay taxes. Nor can he shift this civil liability for these tax defaults onto some innocent third parties through the expedient of filing frivolous third-party complaints. Accordingly, the motions to dismiss these third-party complaints should be granted, and these complaints should be dismissed.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the motions to dismiss Kistler's third-party complaints filed by the various third-party defendants, (Docs. 50, 53, 54, and 55), be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.