1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 THOMAS JOSEPH MELGER, ) Case No.: 1:21-cv-01183-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO

THIS ACTION

14 UNITED STATES DEPARTMENT OF ) TREASURY, et al., ) FINDINGS AND RECOMMENDATION 15 ) RECOMMENDING DISMISSAL OF ACTION ) FOR FAILURE TO STATE A COGNIZABLE 16 Defendants. ) CLAIM ) 17 ) (ECF No. 11)

18 Plaintiff Thomas Joseph Melger is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant action on August 2, 2021. On August 10, 2021, the Court screened 21 Plaintiff’s complaint, found that he failed to state a cognizable claim, and granted Plaintiff thirty days 22 to file an amended complaint. Plaintiff filed a first amended complaint on August 19, 2021. 23 I. 24 SCREENING REQUIREMENT 25 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court determines 26 that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; 27 or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 28 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in 1 forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune 3 defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to 4 dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 5 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). The Court exercises its 6 discretion to screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; 7 (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant 8 who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 9 In determining whether a complaint fails to state a claim, the Court uses the same pleading 10 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and plain 11 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed 12 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 15 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as 16 true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). 17 Although a court must accept as true all factual allegations contained in a complaint, a court need not 18 accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts 19 that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line between possibility 20 and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 21 II. 22 COMPLAINT ALLEGATIONS 23 Plaintiff is 45 years old and eligible to receive separate $1,400 and $600.00 stimulus checks 24 under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act). 25 On January 20, 2021, Plaintiff filed an administrative claim with the Internal Revenue Service 26 (IRS) about not receiving his $600.00 check. Plaintiff did receive his $1,200 stimulus check based on 27 the filing of his 2018 and 2019 tax returns. Plaintiff thereafter became incarcerated. 28 /// 1 Plaintiff sent another address change to the IRS and United States Department of Treasury in 2 February 2021. Plaintiff, with the assistance of his sister, filed another administrative claim via the 3 internet on the IRS government website on June 20, 2021 about not receiving his $1,400 stimulus 4 check. Plaintiff mailed another notice of change of address on June 11, 2021. 5 III. 6 DISCUSSION 7 A. Entitlement to Relief Under the CARES Act 8 The CARES Act was signed into law to provide economic relief to certain individuals during 9 the COVID-19 pandemic. The Act defines an “eligible individual” as “any individual other than any 10 nonresident alien individual,” any individual who cannot be claimed as a deduction on another 11 taxpayer's income tax return, and “an estate or trust.” See 26 U.S.C. § 6428(d). As stated by one 12 district court: 13 The portion of the CARES Act relevant to this litigation amended the Internal Revenue Code to provide for Economic Impact Payments (“EIP”) to be paid directly to eligible individuals 14 through a “tax credit.” The amount of the credit allocated to eligible individuals is limited based on an eligible individual's adjusted gross income (“AGI”), with phase-outs beginning at 15 $75,000 for individual filers and $150,000 for joint filers. 26 U.S.C. § 6428(c). The credit was 16 to be paid in 2021 based on an individual's 2020 income tax return, see 26 U.S.C. § 6428(a), or as an “advance refund” to be paid on or before December 31, 2020, based on an individual's 17 2019 income tax return. See 26 U.S.C. § 6428(f). If an eligible individual had not filed a 2019 tax return, that individual would still be eligible to receive an advance refund based on that 18 person's 2018 tax return. 26 U.S.C. § 6428(f)(5)(A). If an individual had not filed either a 2019 19 or a 2018 tax return, the IRS could use information provided in Form SSA-1099 or Form RRB- 1099, with respect to that individual receiving social security benefits. 26 U.S.C. § 20 6428(f)(5)(B). The IRS indicated that it would calculate and automatically issue an EIP to eligible individuals. 21 22 Persons who did not file a tax return for tax years 2018 or 2019 (“non-filers”) could go to a web-based portal the IRS set up for non-filers to provide their information in order to receive 23 the EIP advance refund. Individuals who use the non-filer online portal had until October 15, 2020, to register in order to receive the EIP by the December 31, 2020 deadline imposed by the 24 CARES Act. Eligible individuals who did not receive an advance refund could claim their EIP tax rebates by filing a 2020 tax return in 2021. 25

26 See Puckett v. U.S. Dept. of Treasury Internal Revenue Service, No. 1:21 CV 425, 2021 WL 2550995, 27 at *2 (N.D. Ohio June 22, 2021). As in Puckett, Plaintiff has failed to provide plausible factual 28 1 allegations that he has filed his tax return and has received a written rejection or notice of disallowance 2 of his claim for stimulus. The CARES Act does not permit an eligible individual to immediate payment. 3 26 U.S.C § 6428(f)(3)(A) (“The Secretary shall, subject to the provisions of this title, refund or credit 4 any overpayment attributable to this section as rapidly as possible.”) Thus, the plain language of the 5 Act allows a rebate by way of advance refund, or a tax credit, or combination thereof. 26 U.S.C. § 6428. 6 Plaintiff has not provided any evidence that he is eligible for stimulus funds or has taken the necessary 7 steps to request the funds from the IRS by filing a 2020 tax return to claim the funds. In fact, the deadline 8 to do so expired prior to Plaintiff filing the instant action. Therefore, the Court finds that it lacks 9 jurisdiction over the matter. 10 In addition, Plaintiff has failed to demonstrate a due process violation, as there not sufficient 11 facts to establish a fundamental liberty interest in a CARES Act stimulus payment or that the interest 12 was wrongfully withheld. Cf. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that 13 fundamental rights and liberty interests protected by the Due Process Clause include the rights to marry, 14 to raise children, to privacy, to use contraception, and to bodily integrity, as well as the interests 15 protected by the Bill of Rights); see also Lamar v. Hutchison, No. 21-CV-00347, 2021 WL 4047158, at 16 * 12 (E.D. Ark. Sept. 3, 2021). Accordingly, Plaintiff’s complaint fails to state a cognizable claim for 17 relief. 18 Because Plaintiff was previously granted leave to amend and failed to cure the identified 19 pleading defects, the undersigned recommends Plaintiff’s amended complaint be dismissed without 20 leave to amend and that this action be dismissed. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 21 2009) (“When a proposed amendment would be futile, there is no need to prolong the litigation by 22 23 permitting further amendment.”); see also Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 24 502, 520 (9th Cir. 2013) (holding the court’s discretion to deny leave to amend is “particularly broad” 25 where the plaintiff has previously amended his complaint). 26 /// 27 /// 28 /// 1 IV. 2 ORDER AND RECOMMENDATION 3 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 4 || Judge to this action. 5 Further, it is HEREBY RECOMMENDED that the instant action be dismissed for failure to sta 6 cognizable claim for relief. 7 This Findings and Recommendation will be submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 9 || after being served with this Findings and Recommendation, Plaintiff may file written objections with 10 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 12 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 13 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 || TT IS SO ORDERED. Be '° Dated: _ October 27, 2021 OF A 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28