Overton v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 22 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk

BILL MAX OVERTON,

Plaintiff - Appellant, No. 02-6117
v. (D.C. No. CIV-01-601-L)
UNITED STATES OF AMERICA, (W.D. Oklahoma)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

Bill Max Overton, appearing pro se, filed an action raising seventeen

claims against the United States; each claim sought damages for alleged

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
violations of the Omnibus Taxpayer Bill of Rights, Pub. L. No. 100-647, Title VI,

Subtitle J (codified as amended in scattered sections of 26 U.S.C.), which

Congress passed on November 10, 1988. The government moved, pursuant to

Fed. R. Civ. P. 8, 12(b)(1) and 12(b)(6), to dismiss Mr. Overton’s complaint.

Construing Mr. Overton’s allegations liberally pursuant to Hall v. Bellmon ,

935 F.2d 1106, 1110 (10th Cir. 1991), the district court determined it did have

jurisdiction over this matter via 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7432.

The district court dismissed Mr. Overton’s complaint, without prejudice, for

failure to state a claim. The district court also denied Mr. Overton’s motion for

recusal. Mr. Overton now appeals.

Sixteen of Mr. Overton’s allegations contend that the government violated

26 U.S.C. § 7609 by seeking to obtain records from sixteen different banks

without sending Mr. Overton any notice. We agree with the district court’s

conclusion that these allegations fail to state a claim because “no facts alleged . . .

indicate[] how or when these alleged violations occurred.” Rec. doc. 56, at 2, at 2

(Dist. Ct. Order, filed March 19, 2002).

Mr. Overton’s remaining allegation charges that he is entitled to damages

because a “Revenue officer knowingly demanded greater sum than authorized by

law” in violation of 26 U.S.C. § 7214(a)(2). Rec. doc. 1, at 11 (Complaint, filed

Apr. 19, 2001). Apparently, Mr. Overton is challenging the government’s

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assessment of his 1998 tax return as excessive. Mr. Overton does not identify the

revenue officer or agent who allegedly violated the statute. In addition, a

taxpayer may file suit for damages under this section only after a criminal

conviction against the revenue officer or agent has been procured under this

section. See Brunwasser v. Jacob , 453 F. Supp. 567, 572-73 (E.D. Pa. 1978),

aff’d , 605 F.2d 1194 (3d Cir. 1979); see also Detweiler v. United States , 406 F.

Supp. 695, 760 (E.D. Pa.1975), aff’d , 544 F.2d 512 (3d Cir. 1976). We therefore

conclude that the district court properly dismissed this count of Mr. Overton’s

complaint without prejudice.

Finally, we turn to Mr. Overton’s contention that the district court acted

with bias and prejudice against him and improperly failed to grant his recusal

motion. We review the denial of a motion to recuse only for an abuse of

discretion. United States v. Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).

“[C]onclusions, rumors, beliefs and opinions are not sufficient to form a basis for

disqualification.” Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987). Rather,

Mr. Overton must allege “with required particularity the identifying facts of time,

place, persons, occasion and circumstances.” Id.

In this case, Mr. Overton’s motion is based solely on his own conclusions,

beliefs and opinions, and a review of the record shows that the district court did

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not act with bias or prejudice in any of its rulings. We conclude that the district

court did not abuse its discretion in denying Mr. Overton’s recusal motion. 1

Accordingly, we AFFIRM the orders of the district court.

Entered for the Court,

Robert H. Henry
Circuit Judge

1
In light of our resolution of the issues raised by Mr. Overton, we DENY
Mr. Overton’s Motion to Call Forward the Entire Trial Court Record. In that
motion, Mr. Overton alleges that the district court erred in striking from the
record certain lists of evidence pertaining to his allegations of bias and prejudice.
We note that Mr. Overton filed this motion after the district court entered
judgment against him. Moreover, the evidence to which Mr. Overton refers
consists only of his unsupported allegations.

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