United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Thomas Wrhel, appearing pro se, alleges that the state of
Wisconsin is wrongfully garnishing his wages to pay
incorrectly calculated delinquent taxes. Wrhel has already
been granted leave to proceed in forma pauperis without
prepaying any portion of the filing fee for this action.
next step would ordinarily be for me to screen the complaint
and dismiss any portion that is legally frivolous, malicious,
fails to state a claim upon which relief may be granted, or
asks for money damages from a defendant who by law cannot be
sued for money damages. 28 U.S.C. § 1915. But in his
motion for leave to proceed in forma pauperis, Wrhel states
that he wants me to recuse “for negligence under docket
16-cv-758-jdp.” Dkt. 4.
758 case, I granted the United States' motion for summary
judgment on Wrhel's claim under 26 U.S.C. § 7422 for
refund of federal taxes collected because the IRS had already
refunded Wrhel the amount that it had incorrectly collected.
Dkt. 135 in the '758 case, at 11. I granted judgment in
Wrhel's favor on his claim for damages under 26 U.S.C.
§ 7433 for IRS employees negligently violating its rules
by sending notices to the wrong address. Id. at 15.
But I rejected Wrhel's contention that he was entitled to
damages for severe emotional harm he suffered from the
IRS's actions. Id. at 20. I awarded him $400 in
damages, the filing fee for the case. Id. at 21.
does very little to explain why he thinks that I should
recuse myself. In an attachment to his complaint, Wrhel says
that I “failed negligently to hold the people involved
responsible” and that I “negligently failed to
subpoena evidence that would collaborate the timing of these
events and show that nefarious actions were plentiful by the
IRS.” Dkt. 3, at 7. Recusal is not called for simply
because I have made rulings that Wrhel disagrees with. He
does not suggest that my summary judgment rulings dismissing
his refund claim or limiting his damages was the result of
bias against him or any other improper reason. And it is not
the court's duty to collect evidence to prove his claims;
that was Wrhel's duty. Because Wrhel does not provide a
persuasive reason for me to recuse myself, I will deny his
screening Wrhel's current complaint, I must accept his
allegations as true, see Bonte v. U.S Bank, N.A.,
624 F.3d 461, 463 (7th Cir. 2010), and construe the complaint
generously, holding it to a less stringent standard than
formal pleadings drafted by lawyers. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011). But even
after applying these standards, I conclude that he fails to
state a plausible claim for relief that may be heard by this
sues the state of Wisconsin and its Department of Revenue,
saying that the state incorrectly assessed him with having
almost $500, 000 in income in 2016, and for improperly
collecting it. But much of the fact section of his complaint
recounts the events of the '758 case, about his 2010 to
2013 federal taxes. Those events do not appear to have any
relation to his 2016 state taxes, so I will disregard those
focus on Wrhel's allegations that the state miscalculated
his income, improperly issued a notice of wage garnishment to
his employer, violated state regulations by beginning
garnishment before 30 days after the initial notice, and
filed an unlawful tax warrant in state court. Even assuming
that these allegations are true, this federal court cannot
entertain any claims based on the allegations. Wrhel seeks
damages and injunctive relief. His claims for damages are
barred by the by the state's sovereign immunity. Wynn
v. Southward, 251 F.3d 588, 592 (7th Cir. 2001). He
invokes 26 U.S.C. §§ 7422 and 7433, but those
statutes provide for claims against the federal government;
they do not apply to states.
his claims for injunctive relief, even assuming that Wrhel
potentially states a claim for violation of his federal
constitutional rights, longstanding principles of comity
prevent this court from allowing him to bring those claims
here. The United States Supreme Court has held that
“taxpayers are barred by the principle of comity from
asserting § 1983 actions [for violation of one's
constitutional rights] against the validity of state tax
systems” when state law furnishes an adequate legal
remedy. Fair Assessment in Real Estate Assn., Inc. v.
McNary, 454 U.S. 100, 116 (1981). Taxpayers must first
exhaust state remedies. Wisconsin Statute § 71.88 sets
forth procedures to appeal tax decisions to the state
Department of Revenue and then to the Tax Appeals Commission.
Only after exhaustion may taxpayers seek review of the state
court decision in the United States Supreme Court. Heyde
v. Pittenger, 633 F.3d 512, 520 (7th Cir. 2011). Because
this court cannot entertain any of his claims, I will dismiss
Plaintiff Eric Thomas Wrhel's motion for my recusal, Dkt.
4, is DENIED.
case is DISMISSED.
clerk of court is directed to enter judgment in favor of