Elmore v. Internal Revenue Service

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO.: 25-CV-22396-GAYLES/ELFENBEIN MATTHEW ROBERT ELMORE, Plaintiff, v.

INTERNAL REVENUE SERVICE, Defendant. ______________________________/

ORDER THIS CAUSE comes before the Court on the Report and Recommendation of Magistrate Judge Marty Fulgueira Elfenbein (the “Report”). [ECF No. 9]. On May 27, 2025, Plaintiff Matthew Robert Elmore (“Plaintiff”) filed his Complaint, [ECF No. 1], and Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”), [ECF No. 3]. On June 13, 2025, Plaintiff filed his Motion for Referral to Volunteer Attorney Program (“Motion for Referral”). [ECF No. 5].

Pursuant to Southern District of Florida Administrative Order 2025-11, Plaintiff’s pro se case was assigned to Magistrate Judge Elfenbein for timely and efficient resolution. [ECF No. 4].

On July 2, 2025, Judge Elfenbein ordered the Court Clerk to re-assign the case to a United States District Judge while Judge Elfenbein remained assigned to the case. [ECF No. 6]. On the same day, the case was reassigned to this Court. [ECF No. 7]. On July 3, 2025, this Court referred the case to Judge Elfenbein for a ruling on all pretrial non-dispositive matters a report and recommendation on all dispositive matters. [ECF No. 8].

On July 3, 2025, Judge Elfenbein issued her Report which recommended that Plaintiff’s IFP Motion be granted, and that Plaintiff’s Complaint be dismissed for failure to state a claim for which relief could be granted. [ECF No. 9 at 6–7]. In particular, Judge Elfenbein noted that the Complaint failed to “explain the legal theory supporting [Plaintiff’s] request for [his] tax returns, the legal authority permitting a lawsuit to get the tax returns, or the waiver of sovereign immunity authorizing him to sue the IRS[.]”1 Id. at 7. Judge Elfenbein also determined that Plaintiff’s statement of claim, “I need all of my tax returns from[,]” was frivolous and “lack[ed] an arguable basis in law[.]”2 Id. at 2, 7 (internal quotation omitted). As a result, Judge Elfenbein recommended dismissing the action without prejudice. Id. at 9. Considering her dismissal recommendation, Judge Elfenbein also recommended denying Plaintiff’s Motion for Referral as moot. Id. No party has objected to the Report.

A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1)(C). The objected portions of the report and recommendation are accorded de novo review if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Given that Plaintiff has not objected to any portion of the Report, the Court

1 Agencies of the United States “are immune from suit unless Congress unequivocally waives” their immunity. Stone v. Comm’r of Internal Revenue, 86 F.4th 1320, 1327 (11th Cir. 2023) (internal quotation omitted). Without an immunity waiver, “[t]he IRS . . . cannot be sued.” Galvez v. IRS, 448 F. App’x 880, 884 (11th Cir. 2011). “[T]he plaintiff bears the burden of . . . prov[ing] an explicit waiver of immunity.” Ishler v. Internal Revenue, 237 F. App’x 394, 398 (11th Cir. 2007).

2 Plaintiff’s Statement of Claim is one incomplete sentence. [ECF No. 1 at 4]. reviewed the Report for clear error. Finding no clear error, the Court agrees with Judge Elfenbein’s findings and conclusion that the case should be dismissed without prejudice.

CONCLUSION Therefore, itis ORDERED AND ADJUDGED as follows: (1) The Report and Recommendation, [ECF No. 9], is ADOPTED in full; (2) Plaintiff's Motion for Leave to Proceed Jn Forma Pauperis, [ECF No. 3], is GRANTED. (3) This action is DISMISSED without prejudice and ADMINISTRATIVELY CLOSED. Plaintiff may file an amended complaint by August 22, 2025. (4) Plaintiff's Motion for Referral to Volunteer Attorney Program, [ECF No. 5], is DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of July 2025.

DARRIN P. GAYLES UNITED STATES DI CT JUDGE