United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
ROSENSTENGEL, CHIEF JUDGE:
9, 2019, Plaintiff Donnie Baker filed a pro se civil
rights Complaint (Doc. 1) alleging his constitutional rights
were violated when he did not get his tax refund. Baker also
filed a Motion for Leave to Proceed in forma
pauperis (“IFP”) (Doc. 3).
28 U.S.C. § 1915(a)(1), a federal district court may
allow a civil case to proceed without prepayment of fees if
the movant “submits an affidavit that includes a
statement of all assets he possesses [showing] that he is
unable to pay such fees or give security therefor.”
Section 1915(e)(2) requires careful threshold scrutiny of the
complaint filed by an IFP plaintiff. The Court must dismiss
any complaint if the allegation of poverty is untrue or if
the action is frivolous or malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief.
Id.; see also Hoskins v. Poelstra, 320 F.3d
761, 763 (7th Cir. 2003) (“District judges have ample
authority to dismiss frivolous or transparently defective
suits spontaneously, and thus save everyone time and legal
expense.”). Thus, resolution of Baker's motion for
IFP requires the undersigned District Judge to closely review
the allegations of his petition.
undersigned is cognizant that courts must construe pro
se claims generously. Buechel v. United States,
746 F.3d 753, 758 (7th Cir. 2014). A pro se
complaint is not required to explicitly refer to the proper
statute or legal theory in order to state a cause of action
as long as relief is possible under that statute or theory
consistent with the facts pled. Kennedy v. National
Juvenile Detention Ass'n, 187 F.3d 690, 695 (7th
Cir. 1999), cert. denied, 120 S.Ct. 1169 (2000);
Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134
(7th Cir. 1992). “District courts have a special
responsibility to construe pro se complaints
liberally and to allow ample opportunity for amending the
complaint when it appears that by doing so the pro
se litigant would be able to state a meritorious
claim.” Donald v. Cook Cnty. Sheriff's
Dep't, 95 F.3d 548, 555 (7th Cir. 1996).
the Court can tell, Baker is alleging that he worked for
Nexus Employment Solutions, presumably a temporary employment
agency that placed him at three companies in Manteno and
Kankakee, Illinois (Doc. 1). Baker then alleges that
Defendants-executives or managers at these three
companies-did not send him his “tax refund”
(Id.). As relief, Baker asks for $500, 000 in
compensatory damages and $500, 000 in punitive damages.
allegations fail to state a valid claim under federal
A claim for a tax refund must first be filed with the
Secretary of Treasury before a lawsuit for a refund may be
commenced, 26 U.S.C. § 7422(a), and there is no
allegation in Baker's Complaint that he did so. Nor is
there any allegation that he is even entitled to a tax
refund. If he is, the proper defendant would be the United
States, not the individual executives and managers at the
companies where he worked. See 28 U.S.C. §
broadly construing Baker's claims and presuming he meant
that Defendants failed to send him a W-2, Baker's suit
still must be dismissed. It is firmly established that the
failure to provide a W-2 creates liability on the part of an
employer to the United States-not to the employee.
See 26 U.S.C. § 6051. In other words, an
individual citizen has no right to sue over an employer's
failure to provide a W-2. Instead, the Internal Revenue
Service can assess penalties against the employer.
See 26 U.S.C. § 6722; Watson v. Johnny
O's Inc., No. 5:12 CV 1083, 2012 WL 2505949, at *2
(N.D. Ohio June 28, 2012) (any civil or criminal penalties
assessed against employer for a violation of 26 U.S.C. §
6051 would inure to the IRS, not the plaintiff); Rumfelt
v. Jazzie Pools, Inc., No. 1:11CV217 JCC TCB, 2011 WL
2144553, at *3 (E.D. Va. May 31, 2011) (dismissing claim that
employer failed to provide a W-2 because 26 U.S.C. §
6722 provides no private right of action); Katzman v.
Essex Waterfront Owners LLC, No. 09 Civ. 7541, 2010 WL
3958819, at *3 (S.D.N.Y. Sept. 29, 2010) (no private right of
action exists for failure to provide a W-2).
Baker could sue an employer for failing to provide a W-2, he
has not alleged that any damages accrued from Defendants'
conduct here. And there certainly is no basis for a claim
that his constitutional rights were violated. Accordingly,
Baker's Complaint must be dismissed. See Williams v.
Secure Res. Commc'ns, No. 11 CIV. 03986 PAC, 2011 WL
8199938, at *2 (S.D.N.Y. Sept. 26, 2011), report and
recommendation adopted in part, No. 11 CIV. 03986 PAC,
2012 WL 2864519 (S.D.N.Y. July 12, 2012).
Baker has alleged no facts stating a plausible claim for
relief, his Motion for Leave to Proceed in forma
pauperis (Doc. 3) is DENIED, and this
action is DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915(3)(2)(B)(ii). The Clerk of
Court is DIRECTED to enter judgment
an abundance of caution, the Court advises Baker as follows.
If Baker wishes to contest this Order, he has two options. He
can ask the Seventh Circuit to review the Order, or he can
first ask the undersigned to reconsider the Order before
appealing to the Seventh Circuit.
Baker chooses to go straight to the Seventh Circuit, he must
file a notice of appeal within 60 days from the
entry of judgment or order appealed from. Fed. R. App. P.
4(a)(1)(B). The deadline can be extended for a short time
only if Baker files a motion showing excusable neglect or
good cause for missing the deadline and asking for an
extension of time. Fed. R. App. P. 4(a)(5)(A), (C); see
also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012)
(explaining the good cause and excusable neglect standards);
Abuelyaman v. Illinois State Univ., 667 F.3d 800,
807 (7th Cir. 2011) (explaining the excusable neglect
other hand, if Baker wants to start with the undersigned, he
should file a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e). The motion
must be filed within twenty-eight (28) days of the
entry of judgment, and the deadline cannot be
extended. Fed.R.Civ.P. 59(e); 6(b)(2). The motion must also
comply with Rule 7(b)(1) and state with sufficient
particularity the reason(s) that the Court should reconsider
the judgment. Elustra v. Mineo, 595 F.3d 699, 707
(7th Cir. 2010); Talano v. Nw. Med. Faculty Found.,
Inc., 273 F.3d 757, 760 (7th Cir. 2001); see also
Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion
to amend judgment, a party must clearly establish (1) that
the court committed a manifest error of law or fact, or (2)
that newly discovered evidence precluded entry of
judgment.”) (citation and internal quotation marks
as the Rule 59(e) motion is in proper form and timely
submitted, the 60-day clock for filing a notice of appeal
will be stopped. Fed. R. App. P. 4(a)(4). The clock will
start anew once the undersigned rules on the Rule 59(e)
motion. Fed. R. App. P. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To
be clear, if the Rule 59(e) motion is filed outside the
28-day deadline or “completely devoid of substance,
” the motion will not stop the clock for filing a
notice of appeal; it will expire 60 days from the entry of
judgment. Carlson v. CSX Transp., Inc., 758 F.3d
819, 826 (7th Cir. 2014); Martinez v. Trainor, 556
F.2d 818, 819-20 (7th Cir. 1977). Again, this deadline can be
extended only on a written motion by Baker showing excusable
neglect or good cause.
Baker chooses to appeal to the Seventh Circuit, he can do so
by filing a notice of appeal in this Court. Fed. R. App. P.
3(a). The current cost of filing an appeal with the Seventh
Circuit is $505.00. The filing fee is due at the time the
notice of appeal is filed. Fed. R. App. P. 3(e). If Baker
cannot afford to pay the entire filing fee up front, he must
file a motion for leave to appeal in forma pauperis
(“IFP motion”). See Fed. R. App. P.
24(a)(1). The IFP motion must set forth the issues Baker
plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If he is allowed to proceed IFP on appeal, he
will be assessed an ...