Blankenship v. Department of the Treasury, Internal Revenue Service ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARTEMUS BLANKENSHIP, Case No. 1:21-cv-00581-NONE-SAB 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR A NINETY DAY 13 v. EXTENSION OF TIME 14 DEPARTMENT OF THE TREASURY, (ECF No. 8) INTERNAL REVENUE SERVICE, 15 FOURTEEN DAY DEADLINE Defendant. 16 17 Artemus Blankenship (“Plaintiff”), a state prisoner proceeding pro se and in forma 18 pauperis, filed this action against the Department of Treasury, Internal Revenue Service on April 19 7, 2021. (ECF No. 1.) On May 12, 2021, Plaintiff’s complaint was screened and the Court 20 found that it lacked jurisdiction because Plaintiff had not filed an administrative claim as 21 required by 26 U.S.C. § 6511(a). (ECF No. 7.) Plaintiff was granted leave to file an amended 22 complaint within thirty days. (Id.) 23 On June 9, 2021, Plaintiff filed a request for a ninety day extension of time to file his 24 administrative claim and also asserted that he received a refund of $1,400.00 on May 26, 2021. 25 (ECF No. 8.) However, 26 U.S.C. § 7422 provides that no civil action can be maintained for a 26 claim for refund or credit of taxes until a claim has been duly filed. Here, Plaintiff filed this 27 action prior to exhausting his administrative remedies and, pursuant to section 7422, “a suit 1 | cannot be maintained if it was filed before the exhaustion of administrative remedies.” Erickson 2 | v. United States, No. CV 13-00273-KAW, 2013 WL 2299624, at *3 (N.D. Cal. May 24, 2013). 3 | Therefore, Plaintiff cannot correct his failure to exhaust his administrative remedies prior to 4 | filing this suit in a later filed claim. See Gray v. United States, 723 F.3d 795, 799 (7th Cir. 2013) 5 | (belated attempt to file administrative claim did not comply with IRS procedures and therefore 6 | bars plaintiff from maintaining action). 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's request for a ninety day extension of time is DENIED; 9 2. Plaintiff SHALL FILE an amended complaint within fourteen (14) days of the 10 date of entry of this order; and 11 3. Plaintiff is advised that failure to file an amended complaint in compliance with 12 this order will result in this action being dismissed for failure to comply and 13 failure to prosecute. 14 15 IT IS SO ORDERED. FA. ee 16 | Dated: _ June 11, 2021 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28