United States District Court, D. Kansas
RONALD E. DAVIS, Plaintiff,
BANK OF AMERICA, Defendants.
MEMORANDUM & ORDER
MURGUIA United States District Judge
matter comes before the court on pro se plaintiff Ronald E.
Davis's Motion for Review of Order (Doc. 42). Plaintiff
seeks review of this court's order setting aside default
and granting defendant Franchise Tax Board's motion to
dismiss. (Doc. 41.) The court will interpret plaintiff's
motion as one to alter or amend judgment under Rule 59(e) of
the Federal Rules of Civil Procedure. Because plaintiff has
not provided any grounds for reconsideration of the
court's order, his motion is denied.
motion for reconsideration-which is not recognized by the
Federal Rules of Civil Procedure-may be construed as a motion
to alter or amend the judgment under Rule 59(e) if filed
within 28 days after the entry of judgment. See Price v.
Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005).
Relief under Rule 59(e) is available only if a party can
establish (1) there is an intervening change in controlling
law, (2) there is new evidence that was previously
unavailable, or (3) there is a need to correct clear error or
prevent manifest injustice. See Hayes Family Trust v.
State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th
Cir. 2017). A motion to alter or amend judgment is
appropriate where the “court has misapprehended the
facts, a party's position, or the controlling law.”
Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). It should not be used to
“revisit issues already addressed or advance arguments
that could have been raised in prior briefing.”
motion largely consists of arguments raised in prior
pleadings, so he has not established he is entitled to Rule
59(e) relief. He has not shown there is any new law, new
evidence, or that the court has made a clear error. He argues
that defendant is not entitled to sovereign immunity and
there is no good cause for setting aside the clerk's
entry of default, all arguments raised in his responses to
defendant's motion for relief from judgment and motion to
plaintiff is proceeding pro se, the court will liberally
interpret his motion and presume he seeks relief based on an
error of law. He argues there was no good cause to set aside
the clerk's entry of default because defendant's
listed affirmative defenses were meritless. Although he has
already argued these claims in a prior pleading, the court
will briefly address them below.
on the accusations in the amended complaint and various other
pleadings, the court notes that plaintiff has claimed that
defendants fraudulently garnished funds from his Bank of
America account under the false allegation he owed taxes in
California. He maintains that his civil rights have been
deprived and that he is a victim of intentional torts and
negligence. He believes there is no sovereign immunity when a
state is in violation of the constitution and that sovereign
immunity is waived under 42 U.S.C. 2000d-7 and
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
however, has misinterpreted both 42 U.S.C. 2000d-7 and the
Supreme Court's ruling in Fitzpatrick. 42 U.S.C.
2000d-7 waives state sovereign immunity in cases involving
violations of certain federal anti-discrimination laws.
Plaintiff has not brought a claim under any of these
statutes. Further, in Fitzpatrick, the Supreme Court
held that Congress has the power to provide for private suits
against states that may otherwise be unconstitutional under
the Eleventh Amendment. 427 U.S. at 456. Again, plaintiff has
not specified which federal laws make his claim is
actionable. None of the various statutes plaintiff lists in
his amended complaint provide a private cause of action.
plaintiff's tort claims, the court again finds no error
in holding that the principle of comity bars his suit as
currently pled. While the court recognizes plaintiff does not
believe this to be a tax case, the court again notes that any
disputes with a tax assessment, including whether the tax
should have been assessed in the first place, should first be
resolved using California tax dispute procedures. Plaintiff
continues to argue he is the victim of fraud and negligence.
But neither California nor Kansas has waived immunity for
public entities for injuries that may have occurred as a
result of tax collection. See Cal. Gov't Code
§ 860.2 (“Neither a public entity nor a public
employee is liable for an injury caused by: (a) Instituting
any judicial or administrative proceeding or action for or
incidental to the assessment or collection of a tax. (b) An
act or omission in the interpretation or application of any
law relating to a tax.”); Kan. Stat. Ann. §
75-6104(f) (“A governmental entity or an employee
acting within the scope of the employee's employment
shall not be liable for damages resulting from: (f) the
assessment or collection of taxes or special
the court interprets plaintiff's Motion for Clarity of
Plaintiffs Motion for Review of Court Order to Dismiss Case
16-2506 Answer to Defendant California Franchise Tax Board
(Doc. 44) as a reply to Franchise Tax Board's response to
his original motion for reconsideration. No separate action
on this filing is necessary.
IS THEREFORE ORDERED that plaintiff Ronald E.
Davis's Motion for Review of Order (Doc. 42) is denied.
IS FURTHER ORDERED that plaintiff Ronald E.
Davis's Motion for Clarity of Plaintiffs Motion for
Review of Court Order to Dismiss Case 16-2506 Answer to