United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge.
Szeklinski, proceeding pro se, has filed a complaint against
the Wisconsin Department of Revenue and individual revenue
agents. He seeks leave to proceed without prepaying the
filing fee under 28 U.S.C. § 1915. I conclude that the
plaintiff cannot afford to prepay the filing fee, and
therefore I will grant his request for leave to proceed
without prepaying it.
28 U.S.C. § 1915(e)(2)(B)(ii), a court must dismiss a
complaint if it determines that it fails to state a claim on
which relief may be granted. In this case, I conclude that
the complaint fails to state a valid claim. The plaintiff
alleges that, in June 2011, he began receiving notices of
delinquent Wisconsin taxes for the years 1998 through 2007.
The plaintiff alleges that he does not owe the State of
Wisconsin any taxes for this period. The plaintiff alleges
that the defendants have continued to demand that the
plaintiff pay delinquent taxes, have placed liens against the
plaintiff's assets, and have notified credit bureaus that
the State of Wisconsin has filed tax liens against him. The
plaintiff argues that the defendants' alleged conduct has
deprived him of his civil rights, as well as his rights under
other federal laws. However, the plaintiff does not allege
that the defendants took any action against him because of
his race, religion, or another protected characteristic, or
that they deprived him of any process for contesting his
liability for the tax. Nor does he allege any other facts
suggesting that the defendants violated the plaintiff's
rights under any provision of federal law. Rather, the
plaintiff alleges merely that the defendants have attempted
to collect taxes from him that he believes he does not owe.
But that, in and of itself, does not violate any provision of
the U.S. Constitution or any other federal law. Probably this
conduct does not violate any state laws either, but even if
it did, I could not exercise subject matter jurisdiction over
a state law claim in the absence of a valid federal claim.
See 28 U.S.C. § 1367. Because the complaint
does not state a valid federal claim, it must be dismissed.
note that, to the extent the plaintiff seeks to prevent the
State of Wisconsin from collecting a tax from him, a federal
suit would likely be barred by the Tax Injunction Act, 28
U.S.C. § 1341, which provides that “[t]he 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.” Further, any claim for damages under 42 U.S.C.
§ 1983 for constitutional violations that occurred in
the course of the state's tax practices would likely be
barred by “the principles of comity and
federalism” that prevent taxpayers from challenging the
validity of any state or local tax practice in federal court
without first seeking relief through available state
remedies, provided that the state remedies are “plain,
adequate, and complete.” See, e.g., Fair Assessment
in Real Estate Ass'n v. McNary, 454 U.S. 100, 116
(1981); Capra v. Cook County Bd. of Review, 733 F.3d
705, 712-13 (7th Cir. 2013).
dismiss a complaint for failure to state a claim on which
relief may be granted, I ordinarily grant the plaintiff one
chance to file an amended complaint that cures the problem
with the original complaint. In the present case, however,
the plaintiff alleges only that the defendants have attempted
to collect taxes from him that he contends he does not owe,
and I do not see how this conduct could be deemed unlawful.
Moreover, even if the plaintiff could allege facts suggesting
that the defendants violated his federal rights in the course
of attempting to collect a state tax, a federal suit would
likely be barred by either the Tax Injunction Act or the
principles of comity and federalism providing that a federal
court will not entertain a suit for damages under § 1983
challenging the validity of a state tax practice where there
are adequate state remedies. Thus, I do not see how the
plaintiff could file an amended complaint that states a valid
claim. Still, out of an abundance of caution, I will grant
the plaintiff an opportunity to file an amended complaint.
However, the plaintiff is advised that if he files an amended
complaint that alleges no more than that the defendants
attempted to collect a tax from him that he does not owe, the
amended complaint will also be dismissed. If the plaintiff
believes that he does not owe the tax that the State of
Wisconsin is attempting to collect from him, most likely his
only option is to challenge the tax through state-law
channels: either by using any administrative review
procedures that the Wisconsin Department of Revenue makes
available, or by filing a complaint in state court.
IT IS ORDERED that the plaintiff's
motion to proceed without prepayment of the filing fee is
IS FURTHER ORDERED that the complaint is
DISMISSED for failure to state a claim on
which relief may be granted. However, the plaintiff is
granted leave to file an amended complaint on or before
November 18, 2016. If the plaintiff does not
file an amended complaint by that date, or if the plaintiff
notifies me before then that he does not want to file an
amended complaint but instead wishes to appeal ...