Dourlain v. United States , 367 F. App'x 229 ( 2010 )

08-4790-cv
Dourlain v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24th day of February, two thousand ten.
PRESENT:
AMALYA L. KEARSE,
PETER W. HALL,
Circuit Judges,
JED S. RAKOFF,*
District Judge.
_____________________________________________
William H. Dourlain,
Plaintiff-Appellant,
v. 08-4790-cv
United States of America,
Defendant-Appellee.
_____________________________________________
*
The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR APPELLANT: William H. Dourlain, pro se,
FOR APPELLEE: John A. DiCicco, Acting Assistant Attorney General; Kenneth L.
Greene and Steven K. Uejio, Attorneys, Tax Division, Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant William H. Dourlain, pro se, appeals from the judgment of the United States
District Court for the Northern District of New York (Mordue, J.), granting Appellee’s motion
for summary judgment, in part, and granting Appellee’s motion for judgment on the pleadings
with respect to the remaining claims in Appellant’s action, brought under 26 U.S.C. § 7433,
alleging the unlawful collection of a tax liability. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, and ask whether the district
court properly concluded that there were no genuine issues of material fact and that the moving
party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,
321 F.3d 292, 300 (2d Cir. 2003). We also review de novo a district court’s judgment on the
pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Hardy v. New
York City Health & Hosps. Corp., 164 F.3d 789, 792 (2d Cir. 1999).
As an initial matter, we note that Appellant raises arguments on appeal only with respect
to the sixth and seventh of his original causes of action, thereby abandoning any challenge to his
remaining seven causes of action. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.
1995) (holding that issues not raised in a pro se litigant’s appellate brief are waived). In any
2
event, we conclude, for substantially the same reasons stated by the district court in its thorough
and well-reasoned ruling, that there was no genuine issue of fact as to whether the Internal
Revenue Service had served Appellant with a “Notice and Demand,” pursuant to 26 U.S.C. §§
6303 and 6331(a), and that Appellant’s complaint did not otherwise “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that [wa]s plausible on its face.’” Johnson v.
Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
We have considered Appellant’s remaining claims and find them to be without merit.
While this appeal has been pending, the plaintiff has filed a number of motions requesting
injunctions. To the extent these motions are still outstanding at this time this order is filed they
are hereby denied for substantially the same reasons as articulated above.
For the foregoing reasons, the order of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3