22

- 1052 Humphrey v. IRS

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CIT ING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16 th d a y of December, two thousand twenty

- two

.

PRESENT: ROBERT D. SACK, RICHARD J. SULLIVAN, MICHAEL H. PARK, Circuit Judges.

_____________________________________ J OHN J AY H UMPHREY , Plaintiff

- Appellant ,

v. No. 22

- 1052

I NTERNAL R EVENUE S ERVICE , U NITED S TATES G OVERNMENT , J USTICE OF THE N ORTHERN D ISTRICT C OURT OF N EW Y ORK , C OURT C LERK OF THE N ORTHERN D ISTRICT C OURT OF N EW Y ORK , J USTICE2 OF THE S ECOND C IRCUIT , C OURT C LERK
OF THE S ECOND C IRCUIT , J USTICES OF THE U NITED S TATES S UPREME C OURT , C OURT C LERK OF THE U NITED S TATES S UPREME C OURT , Defendants

- Appell ee s

. *

_____________________________________

F or Plaintiff

- Appellant : John Jay Humphrey, pro se, Syracuse, NY.

For Defendants

- Appellees : No appearance.

1
Appeal from a judgment of the United States District Court for the Western

District of New York ( Elizabeth A. Wolford , J udge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED

. John Jay Humphrey , proceeding pro se , appeals from the district court’s

dismissal of his claims pursuant to 42 U.S.C. § 1983 against the Internal Revenue

Service (“IRS”) , the United States government , and federal judges , justices, and

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above

.3 clerks of court of the United States District Court for the Northern District of New

York , United States Court of Appeals for the Second Circuit, and the Sup reme

Court of the United States (collectively, the “Judiciary Defendants”)

. 1 Humphrey

alleges in his complaint that the IRS and United States government violated his

due

- process rights by stealing his “tax returns” for ten years, see, e.g. , Dist. Doc.

No. 1 at ¶¶ 22

– 31 , and that the Judiciary Defendants also violated his due

- process
rights when they ruled against him in prior cases alleging misconduct by the IRS ,

as well as prior cases a lleging misconduct by the City of Syracuse for not enforc ing

New York t raffic and parking l aws in poor neighborhoods , resulting in hazardous

road conditions , see, e.g. , id. at ¶¶ 42 , 124

. I n his pro se appellate brief

– which we

“ c onstrue [] liberally and interpret [] to raise the strongest arguments that [ it ]

suggest [s] , ” Meadows v. United Servs., Inc. , 963 F.3d 240, 243 (2d Cir. 2020) (citation

omitted)

– Humphrey contends that the district court , in the course of screening

the sufficiency of his complaint pursuant to 28 U.S.C. § 1915(e)(2) (B) , erred by :

1 The defendants include “Justice of the Second Circuit,” which we construe to name every judge on this Court. Dist. Doc. No. 1 at 1. While judges named as parties would ordinarily be disqualified from hearing this appeal, the “rule of necessity” permits o ur review where it would be impossible to convene a three

- judge panel consisting of circuit judges who are not parties to this suit. See Zaleski v. Burns , 606 F.3d 51, 53 n.1 (2d Cir. 2010).4 ( 1 ) dismissing , as barred by the principles of sovereign immunity, his claim s
against the IRS and United States government ; and ( 2 ) dismissing , as barred by the

principles of judicial immunity, his claim s against the Judiciary Defendants

. We

assume the parties ’ familiarity with the underlying facts, the procedural history,

and issues on appeal.

We review de novo a district court’s ruling on a motion to dismiss based on

sovereign immunity and judicial immunity

. See Vega v. Semple , 963 F.3d 259, 281

(2d Cir. 2020) ( sovereign immunity); Butcher v. Wendt , 975 F.3d 236, 241 (2d Cir.

2020) (judicial immunity)

. Likewise, w e review dismissals under section 1915(e)

de novo

. See Zaleski , 606 F.3d at 52

.

First , the district court properly dismissed without prejudice Humphrey’s

tax

- related claim s against the United States government and the IRS

. The

doctrine of sovereign immunity bars federal courts from hearing all suits for

monetary damages against the federal government, including federal agencies like

the IRS, unless sovereign immunity has been waived. See United States v. Mitchell ,

445 U.S. 535, 538 (1980) ; Robinson v. Overseas Mil. Sales Corp. , 21 F.3d 502, 510 (2d5 Cir. 1994)

. 2 Humphrey argues on appeal that 28 U.S.C. § 1346(a)(1) contains such

a waiver of sovereign immunity , b ut the Supreme Court has rejected this very

argument, explain ing that courts are “barred from entertaining [a] suit for a refund

of [a] tax” under section 1346(a)(1) “until a claim for refund or credit has been duly

filed with the Secretary [of the Treasury] , according to the provisions of law in that

regard, and the regulations that the Secretary established in pursuance thereof.”

United States v. Dalm , 494 U.S. 596, 601

– 02 (1990) (quoting 26 U.S.C. § 7422(a) ) ; see

also 26 U.S.C. § 6511(a)

. Because Humphrey does not disput e the district court’s

conclusion that he failed to allege facts demonstrating that he has sufficiently

exhaust ed his administrative remedies , s ee , e.g. , Green v. Dep’t of Educ. , 16 F.4th

1070, 1074 (2d Cir. 2021) (“[A] pro se litigant abandons an issue by failing to

address it in the appellate brief. ”) , we affirm the district court’s dismissal of his

claims against the IRS and federal government on sovereign

- immunity grounds

.

2 Humphrey asserts t hat he is seeking not only monetary damages, but also seeking criminal penalties including imprisonment or execution

. C riminal penalties , however, are not available in a civil suit like this one

. Furthermore, Humphrey’s allusion s to the execution of the defendants in this case (including the judges of this Court) are wholly inappropriate and provide the basis , i n part , for this Court ’s recent order directing Humphrey to show cause as to why a leave

- to

- file sanction should not be imposed. See Motion Order at 2 , Humphrey v. U

. S

. Dist

. Ct

. for the N

. Dist

. of N .Y. , No. 22

- 1460 (2d Cir. Nov. 30, 2022), ECF No. 45

.6 Second , the district court did not err in dismiss ing with prejudice

Humphrey’s claims against the Judiciary Defendants

. “ It is well settled that

judges generally have absolute immunity from suits for money damages for their

judicial actions.” Bliven v. Hunt , 579 F.3d 204, 209 (2d Cir. 2009). Instead, j udges

are subject to suit only for (1) “nonjudicial actions , i.e. , actions not taken in the

judge ’ s judicial capacity”; and (2) “actions, though judicial in nature, taken in the

complete absence of all jurisdiction.” Mireles v. Waco , 502 U.S. 9, 11

– 12 (1991).

Likewise, clerks of court are entitled to absolute immunity “ for performance of

tasks which are judicial in nature and an integral part of the judicial process.”

Rodriguez v. Weprin , 116 F.3d 62, 66 (2d Cir. 1997). Here, even though Humphrey

names both judges and clerks of court as defendants , the only actions that he

specifically complains of are adverse decisions b y judges in various civil

proceeding s and appeals

– actions that are plainly judicial in nature

. See Bliven ,

579 F.3d at 210 (“[A]cts

. . . related to [] individual cases before the judge are

considered judicial in nature.”)

. Similarly, nowhere does Humphrey plausibly

suggest that the judges rendered those decisions “ in the complete absence of

jurisdiction

. ” See Huminski v. Corsones , 396 F.3d 53, 75 (2d Cir. 2005)

. Thus, the7 district court properly concluded that the Judiciary D efendants were entitled to

absolute immunity.

We have considered Humphrey’s remaining arguments and find them to be

without merit. 3 Accordingly, we AFFIRM the judgment of t he district court.

FOR THE COURT: Catherine O ’ Hagan Wolfe, Clerk of Court

3 For example, t o the extent that Humphrey also challenges the district court’s denial of leave to amend , we agree with the district court that amendment would be futile. See Noto v. 22nd Century Grp., Inc. , 35 F.4th 95, 102 (2d Cir. 2022) (specifying de novo review wher e denial of leave to amend is based on futility ). The complaint’s defects are either substantive and cannot be cured by repleading, or are ones that Humphrey in effect already had the opportunity to cure

. See Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000)

. Moreover, Humphrey “has not offered any pleading that would cure the deficiencies in the extant complaint ,” and “[w] ithout such a showing, we can only conclude that repleading would be futile.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc. , 507 F.3d 117, 127 (2d Cir. 2007).