After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument. This order and judgment is not

binding precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

July 18, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARLENE SCHMIDT,

Plaintiff-Appellant, No. 06-4041

v. District of Utah

RICK HARDMAN, IRS Territory

Manager; SHIRLEY COOPER

AUGILAR, Tax Payer Advocate

Manager,

Defendants-Appellees.

(D.C. No. 2:05-CV-1005-TS)

ORDER AND JUDGMENT

*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Plaintiff Darlene Schmidt appeals the dismissal of her complaint for failure

to state a claim. We AFFIRM. 
-2-

 Factual and Procedural Background 

Ms. Schmidt alleges that in September, October, and November of 2005,

the IRS wrongfully deducted $100 from her Social Security payments to satisfy

income taxes owed from 1991. She claims that she owes no back taxes because

she has not worked since 1982, and that she tried unsuccessfully to get help from

both the IRS and the Taxpayer Advocate Service to resolve the mistake. 

Ms. Schmidt filed a pro se civil rights complaint under 42 U.S.C. §§ 1983

and 1985, alleging violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendments, as well as violations of a state criminal statute. The district court

granted her application to proceed in forma pauperis and denied her Motion for

Service of Process and Motion to Appoint Counsel. Under 28 U.S.C. §

1915(e)(2)(B)(ii), the district court found that Ms. Schmidt had failed to state a

claim for which relief may be granted. The district court dismissed the case

because Ms. Schmidt alleged no facts sufficient to establish any of her legal

claims. Ms. Schmidt filed a Motion for Rehearing and Amending the Complaint,

and the court granted the Motion to Amend. However, despite the amended

complaint, the district court again dismissed for failure to state a claim. Ms.

Schmidt now appeals the dismissal.
-3-

Discussion

We review de novo the district court’s decision to dismiss under § 1915

(e)(2)(B)(ii) for failure to state a claim. Gaines v. Stenseng, 292 F.3d 1222, 1224

(10th Cir. 2002). “Dismissal of a pro se complaint for failure to state a claim is

proper only where it is obvious that the plaintiff cannot prevail on the facts he has

alleged and it would be futile to give him the opportunity to amend.” Perkins v.

Kan. Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). We assume the

truth of every “plausible factual allegation, even if it lacks evidentiary support.” 

Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). A pro se litigant’s

pleadings are construed liberally and held to a less stringent standard than formal

pleadings by a lawyer. Id. at 1110. 

We have reviewed Ms. Schmidt’s brief and the record below, and agree

with the district court that Ms. Schmidt’s amended complaint did not cure any of

the deficiencies that the district court found. Most of her legal claims have

nothing to do with the factual allegations of the complaint. As the district court

held, 42 U.S.C. § 1983 applies to state rather than federal actors, 42 U.S.C. §

1985 to claims of racial discrimination, the Fourth Amendment to searches and

seizures, the Sixth Amendment to the rights of the accused in a criminal case, the

Eighth Amendment to cruel and unusual punishment, and Fourteenth Amendment

to state action. The complaint raises no issues relevant to these legal provisions. 
-4-

Nor may Ms. Schmidt, as a private citizen, sue a federal officer under provisions

of the state criminal code.

As to the Fifth Amendment, we may assume that the plaintiff is invoking

rights under the Due Process Clause, but despite being given a second chance to

file an intelligible complaint, Ms. Schmidt’s complaint sets forth no allegations

from which we can discern a due process argument. To the extent that Ms.

Schmidt wishes to contest her tax liability, she must pursue her remedies under

the Internal Revenue Code. A constitutional lawsuit for damages against Internal

Revenue Service employees cannot substitute for a proper challenge to the

assessment and enforcement of tax liability. 

The judgment of the United States District Court for the District of Utah is

therefore AFFIRMED.

Entered for the Court, 

Michael W. McConnell

Circuit Judge