Sherwood v. Department of the Treasury , 372 F. App'x 101 ( 2010 )

09-1405-cv
Sherwood v. Department of the Treasury
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of March, two thousand and ten.
5
6 PRESENT: PIERRE N. LEVAL,
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 CLIVE ARNEL SHERWOOD,
14
15 Plaintiff-Appellant,
16
17 CLIVE ARNEL SHERWOOD, JR.,
18
19 Plaintiff,
20
21 -v.- 09-1405-cv
22
23 DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, UNITED
24 STATES, TREASURY SECRETARY TIMOTHY F. GEITHNER * , MARY
25 HANNAH, IRS OPERATIONS MANAGER, COLLECTION, COMMISSIONER OF
26 INTERNAL REVENUE SERVICE, MTA-NYCTA, ALAN ABDELHACK, RICHARD
27 DREYFUS,
28
29 Defendants-Appellees.
30
31
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary
of the Treasury Timothy F. Geithner is automatically substituted for former
Secretary of the Treasury Henry M. Paulson, Jr., as a defendant in this case.
1 FOR APPELLANT: CLIVE ARNEL SHERWOOD, pro se, Springfield
2 Gardens, NY.
3
4 FOR APPELLEES: No appearances.
5
6 Appeal from the United States District Court for the
7 Eastern District of New York (Matsumoto, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of said district court be
11 AFFIRMED.
12 Appellant Clive Arnel Sherwood appeals from a judgment
13 of the United States District Court for the Eastern District
14 of New York (Matsumoto, J.), which dismissed sua sponte his
15 complaint challenging a levy allegedly placed on his wages
16 by the Internal Revenue Service. We assume the parties’
17 familiarity with the underlying facts, the procedural
18 history, and the issues presented for review.
19 Pursuant to 28 U.S.C. § 1915(e)(2)(B), a court must
20 dismiss a complaint by a litigant proceeding in forma
21 pauperis if, inter alia, the court determines that it is
22 frivolous or fails to state a claim upon which relief may be
23 granted. We conduct de novo review for both grounds of the
24 district court’s sua sponte dismissal. See Giano v. Goord,
25 250 F.3d 146, 149-50 (2d Cir. 2001) (dismissal pursuant to §
26 1915(e)(2)(B)); see also Maloney v. Soc. Sec. Admin., 517
1 F.3d 70, 74 (2d Cir. 2008) (per curiam) (dismissal pursuant
2 to an absence of subject matter jurisdiction).
3 We affirm for substantially the same reasons stated by
4 the district court in its memorandum and order. Even
5 liberally construing his pro se complaint, Sherwood’s
6 substantive claims are frivolous. Contrary to Sherwood's
7 contentions, the federal income tax is constitutional, wages
8 are taxable income, and the Sixteenth Amendment removed the
9 apportionment requirement for direct taxes. See, e.g.,
10 Ficalora v. Comm’r of Internal Revenue, 751 F.2d 85, 87 (2d
11 Cir. 1984); Connor v. Comm’r of Internal Revenue, 770 F.2d
12 17, 20 (2d Cir. 1985) (per curiam). Sherwood also alleges
13 that the proper procedures for placing a levy on his wages
14 were not followed, but there is no indication that he
15 exhausted his administrative remedies as required with
16 respect to this claim, and the district court therefore
17 properly dismissed this claim. See 26 U.S.C. §§ 7422, 7429;
18 see also Wapnick v. United States, 112 F.3d 74, 75 (2d Cir.
19 1997) (per curiam); United States v. Dalm, 494 U.S. 596,
20 601-02 (1990).
21 We have considered Sherwood's remaining arguments and
22 conclude that they are without merit.
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
8
4