Rollins v. Ingersoll-Rand Co. ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 16, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEV EN LO W ELL RO LLINS,
Plaintiff - Appellant, No. 06-1481
v. (D. Colorado)
IN G ER SOLL-R AN D CO M PA NY, (D.C. No. 06-CV-0336-REB-PAC)
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
In compliance with an order from the Colorado Department of Revenue,
Ingersoll-Rand Company (IRC) garnished the w ages of Steven Low ell Rollins,
one of its employees, for his failure to pay state income taxes. M r. Rollins
subsequently filed this pro se action against IRC, asserting violations of his
constitutional rights and state tort law . The district court adopted the magistrate
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
judge’s recommendation and dismissed the suit with prejudice for failure to state
a claim. Finding M r. Rollins’s arguments on appeal frivolous, we deny his
request to proceed in form a pauperis (IFP) and dismiss his appeal. W e further
warn M r. Rollins that he will likely be subject to sanctions if he continues to
abuse the judicial process, but deny IRC’s request for attorneys fees and costs
under Federal Rule of Appellate Procedure 38.
I.
In 2005, IRC employed M r. Rollins in an unspecified capacity. On A ugust
29, 2005, IRC received a lien and garnishment notice from the Colorado
Department of Revenue, asserting that M r. Rollins had been notified of and failed
to pay $24,135.06 in state income taxes. This notice further directed IRC to
withhold and forward to the Department of Revenue fifty percent of M r. Rollins’s
wages until the delinquent balance was paid in full. IRC complied with the order,
garnishing a total of $6,000 from M r. Rollins’s wages.
On February 27, 2006, M r. Rollins filed this pro se action against IRC in
the United States District Court for the District of Colorado. His complaint
asserted, inter alia, that the garnishment order was unlawful because Colorado
state income tax liability is based on federal income tax liability and he is exempt
from federal taxing authority as a “Sovereign American.” Rec., doc. 1, at 5. As a
result, he averred, IRC violated his rights under the Fourth and Fifth Amendments
and converted his property in contravention of state tort law when it complied
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with the garnishment order. IRC filed a motion to dismiss M r. Rollins’s suit with
prejudice for failure to state a claim.
The district court referred the matter to a magistrate judge pursuant to 28
U.S.C. § 636(b)(1)(B). The magistrate judge recommended that IRC’s motion be
granted because (1) M r. Rollins’s challenge to his tax liability should have been
brought against the Colorado Department of Revenue rather than IRC, (2) M r.
Rollins failed to state cognizable constitutional or state law claims, and (3) he
failed to exhaust his administrative remedies via the appeals process provided by
the state for disputing tax assessments, see, e.g., Colo. Rev. Stat. § 39-21-1-3(2).
After de novo review, the district court adopted the magistrate judge’s
recommendation and, accordingly, dismissed M r. Rollins’s suit w ith prejudice.
M r. R ollins appeals.
II.
W e review pro se pleadings and papers liberally and hold them to a less
exacting standard than those drafted by attorneys. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Doing so here, we read M r. Rollins’s brief to
present three separate (but equally frivolous) claims.
First, M r. Rollins contends the district court lacked personal jurisdiction
over him based on his self-proclaimed status as “an American free born national,
a Sovereign Citizen of the Republic of Colorado, [and] . . . a non-14th
Amendment U.S. subject citizen.” Aplt’s Br. at 5. Suffice it to say, M r. Rollins
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fails to grasp that a plaintiff’s filing suit constitutes consent to a district court’s
exercise of jurisdiction over him or her. See M oore v. Rohm & Haas Co., 446
F.3d 643, 646 (6th Cir. 2006) (“Courts have consistently held that a court always
has personal jurisdiction over a named plaintiff because that party, by choosing
the forum, has consented to the personal jurisdiction of that court.”); W illiams v.
Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir. 1986) (“[J]urisdiction over a
party may be conferred upon a court . . . by voluntary appearance of a party.”).
This case is no exception: M r. Rollins consented to the district court’s personal
jurisdiction over him when he filed suit against IRC.
Second, M r. Rollins daftly argues the district court lacked subject matter
jurisdiction because it is not an A rticle III court. There is no colorable support
for this contention. The United States District Court for the District of Colorado
is, of course, a properly constituted district court under Article III and federal
statutes. See U.S. Const. art. III, § 1 (“The judicial Pow er of the U nited States,
shall be vested in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.”); 28 U.S.C. § 132(a) (“There shall
be in each judicial district a district court which shall be a court of record know n
as the United States District Court for the district.”); 28 U.S.C. § 85 (“Colorado
constitutes one judicial district.”).
Third, M r. Rollins appears to challenge the district court’s decision to refer
his case to the magistrate judge w ithout his consent and the m agistrate judge’s
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authority to issue a report and recommendation. These arguments are also
meritless. The district court did not need the green light from M r. Rollins to refer
his suit to the magistrate judge for a report and recommendation. Garcia v. City
of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000) (“28 U.S.C. § 636(b)(1)(B)
does not require the consent of the parties.”). Nor can the magistrate judge’s
authority to submit a report and recommendation on IRC’s motion to dismiss be
questioned. Bailey v. U.S. Dep’t of A gric., 59 F.3d 141, 142 (10th Cir. 1995) (“It
is clear that the magistrate judge had authority under 28 U.S.C. § 636(b)(1)(B) . .
. to submit proposed findings of fact and a recommendation regarding the various
motions at issue in this case.”).
M r. Rollins does not reallege any of his claims against IRC on appeal. Nor
does he contest the reasons for dismissal. Therefore, these claims have been
abandoned and need not be addressed. See United States v. Seminole Nation of
Okla., 321 F.3d 939, 946 n.5 (10th Cir. 2002) (refusing to address a matter that a
party had abandoned on appeal). W e note, however, that a review of M r.
Rollins’s complaint, the magistrate judge’s report and recommendation, and the
pertinent materials in the record, establishes that the district court properly
dismissed M r. Rollins’s suit with prejudice. M oreover, M r. Rollins’s claim that
he is exempt from the Colorado state income tax as a “Sovereign American” is
clearly frivolous. Indeed, the frivolousness of this asseveration is now, with
apologies to Benjamin Franklin, as certain as the taxes M r. Rollins protests. See
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United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (rejecting as
frivolous and “shop worn” the argument that an individual is a sovereign citizen
of a state who is not subject to federal taxing authority); Lonsdale v. United
States, 919 F.2d 1440, 1448 (10th Cir. 1990) (rejecting as frivolous arguments
concerning the government’s authority to impose income tax and listing
repeatedly rejected arguments).
III.
In its brief, IRC tersely asks this court to award it attorneys fees and costs
under Rule 38 of the Federal Rules of A ppellate Procedure. We cannot do so here
because IRC failed to file a separate motion or notice. Fed. R. App. P. 38,
advisory committee’s note (1994 Amendment) (“[Rule 38] requires that before a
court of appeals may impose sanctions, the person to be sanctioned must have
notice and an opportunity to respond. . . . A separately filed motion requesting
sanctions constitutes notice. A statement inserted in a party’s brief that the party
moves for sanctions is not sufficient notice.”). Nevertheless, we specifically warn
M r. Rollins that any further frivolous filings w ill result in sanctions by the court.
IV .
For the foregoing reasons, we DENY M r. Rollins’s request to proceed IFP,
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DISM ISS his appeal, and DENY IRC’s request for Rule 38 sanctions.
Entered for the Court,
Robert H. Henry
Circuit Judge
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