Court Dismisses Some Claims, Allows Refund Claim to Proceed

DAVID E. MACKEY,
Plaintiff,
v.
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE APPEALS OFFICE, et al.,
Defendants.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

(Doc. No. 12)

Plaintiff David E. Mackey is a state civil detainee proceeding pro se and in forma pauperis in this civil rights action. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On May 18, 2020, the assigned magistrate judge screened plaintiff’s complaint and found that he stated a cognizable tax refund claim against the United States pursuant to 26 U.S.C. § 7422, but that he failed to state any other cognizable claims. (Doc. No. 10 at 5-8.) The screening order directed plaintiff to either file a first amended complaint or notify the court in writing that he was willing to proceed only on his cognizable claim against the United States. (Id. at 8.) Plaintiff filed a notice of his willingness to proceed on the cognizable § 7422 claim against the United States on May 28, 2020. (Doc. No. 11.)

On May 29, 2020, the magistrate judge issued findings and recommendations, recommending that: (1) plaintiff’s § 1983 claims be dismissed with prejudice; (2) plaintiff’s Bivens claims be dismissed with prejudice; (3) this action proceed on plaintiff’s tax refund claim under 26 U.S.C. § 7422 against the United States, and that service of the complaint be ordered on the United States; and (4) the complaint be deemed amended to reflect substitution of the United States as the sole defendant in this action upon proper service of process on the United States. (Doc. No. 12.) The findings and recommendations were served on plaintiff and contained notice that any objections were to be filed within fourteen (14) days of service. (Id.) No objections have been filed, and the time to do so has now passed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court finds that the findings and recommendations are supported by the record and proper analysis.

Accordingly,

IT IS SO ORDERED.

Dated: July 1, 2020

UNITED STATES DISTRICT JUDGE