                                    ___________

                                    No. 95-4246
                                    ___________

Joseph F. Porter,                       *
                                        *
              Appellant,                *
                                        *
      v.                                *
                                        *
Susan Fox, IRS Officer;                 *
Michael Ponte, IRS Officer;             *   Appeal from the United States
Richard J. Wempe, IRS Chief             *   District Court for the
of Special Proc.; James A.              *   District of Nebraska.
Grant, IRS District Director;           *
Internal Revenue Service,               *         [PUBLISHED]
Federal Agency; United States           *
of America, Department of               *
Justice; John Does, Unknown             *
Agents; Jane Doe, Unknown               *
Agents; Louis Sangis, in his            *
official and individual                 *
capacity,                               *
                                        *
              Appellees.                *

                                    ___________

                      Submitted:    October 4, 1996

                           Filed:   October 30, 1996
                                    ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.


      Joseph F. Porter appeals from the district court's order dismissing
his   42   U.S.C. § 1983 action against Internal Revenue Service (IRS)
officials.    We affirm.


      After paying the filing fee, Porter brought the instant action pro
se against the IRS and several of its employees in their individual and
official capacities, claiming that they violated his due process and First
and Fourth Amendment rights when they served him with various notices of
tax liens and levy.    He sought damages
as well as injunctive and declaratory relief.


      Because Porter was pro se, the magistrate judge initially reviewed
the complaint pursuant to the district court's Local Rule 83.10.                   He
stated, as to the official-capacity claims, Porter had failed to allege
either that he had exhausted his administrative remedies under the Federal
Tort Claims Act (FTCA), as required by 28 U.S.C. § 2675, or that this
action did not arise out of "assessment or collection of any tax," an
exception under 28 U.S.C. § 2680(c) to the FTCA's waiver of sovereign
immunity.   If the complaint arose under 26 U.S.C. § 7433 (civil action for
damages where IRS employee disregards law in collecting taxes), Porter also
had not alleged he had exhausted his administrative remedy as that statute
required.   See 26 U.S.C. § 7433(d); 26 C.F.R. § 301.7433-1.               As to the
individual-capacity claims, the magistrate judge stated that section 1983
was unavailable, and Porter had failed to state a claim under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).            The
magistrate judge granted Porter leave to file an amended complaint stating
a claim, or face dismissal.    The magistrate judge also ordered defendants
to enter their appearance, but suspended their obligation to answer or
otherwise respond to the complaint until directed to do so by the court.



      Porter filed an amended complaint. Notwithstanding the magistrate
judge's suspension order, defendants filed an answer and moved to dismiss
or for summary judgment, submitting extensive supporting documentation.
The   magistrate   judge   found   the   amended   complaint   did   not   cure   the
deficiencies noted in his previous report, and recommended dismissal for
failure to state a claim.     While the magistrate judge noted that all the
defendants had been served, he failed to note that the defendants had also
filed the motion to dismiss or for summary judgment which was then fully
at issue.   Instead of recommending to the district court the granting or
denial of the then pending potentially dispositive motion, the




                                         -2-
magistrate judge recommended dismissal because the plaintiff's amended
complaint failed to correct the deficiencies the magistrate judge had
pointed out in his previous order.      Relying on our decision in Martin-
Trigona v. Stewart, 691 F.2d 856, 858 (8th Cir. 1982) (per curiam), the
magistrate judge concluded that the district court could sua sponte dismiss
this complaint under Federal Rule of Civil Procedure 12(b)(6).     Conducting
de novo review after Porter objected, the district court adopted the
magistrate judge's report, dismissed the complaint, and did not reach the
merits       of the defendants' pending motion to dismiss or for summary
judgment.       Instead, the district court denied the defendants' double-
barreled motion as moot.        The court also denied Porter's motion for
reconsideration.


      We take this opportunity to comment on the magistrate judge's and
district court's procedures in conducting an initial review of this fee-
paid, nonprisoner-filed complaint and dismissing it sua sponte under Rule
12(b)(6) while responsive pleadings were on file and at issue.1   In Neitzke
v.   Williams, 490 U.S. 319 (1989), the Supreme Court delineated the
differences between claims which are frivolous under 28 U.S.C. § 1915(d)
and those which fail to state a claim under Rule 12(b)(6).       Although the
Court did not address the permissible scope, if any, of sua sponte
dismissals under Rule 12(b)(6), id. at 329 n.8, the Court noted that review
under Rule 12(b)(6) ordinarily afforded a litigant notice of a pending
motion to dismiss for failure to state a claim and an opportunity to amend
the complaint before the motion was ruled upon, id. at 329.   The Court also
noted the benefits of the adversarial process contemplated by the Federal
Rules, including the opportunities for responsive pleadings.      Id. at 330.




         1
       We note that the new procedures in the Prison Litigation
Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321
(1996), allowing dismissal for failure to state a claim do not
apply to this case: Porter was not proceeding in forma pauperis,
nor was he a prisoner.

                                     -3-
     Considering    Neitzke's   holding   that   a   complaint   filed   in   forma
pauperis is not frivolous merely because it fails to state a claim, id. at
330, our decision in Martin-Trigona--where the complaint was dismissed
under section 1915(d) for failure to state a claim--cannot be relied upon
after Neitzke.   Nor can Martin-Trigona, or other cases preceding Neitzke,
stand for the broad proposition that a district court may, prior to service
of process, sua sponte dismiss a complaint for failure to state a claim.



     All of our post-Neitzke decisions have uniformly held that a district
court may not dismiss prior to service of process unless the complaint is
frivolous.   See Addison v. Pash, 961 F.2d 731, 732 (8th Cir. 1992); Smith
v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991); Freeman v. Abdullah, 925 F.2d
266, 267 (8th Cir. 1991); see also Wabasha v. Smith, 956 F.2d 745, 745 (8th
Cir. 1992) (per curiam) (majority held claims were frivolous and thus
properly dismissed prior to service).     This proposition was not new.       Even
before Neitzke, we held that a sua sponte dismissal without requiring
service on the defendant was disfavored because "`the district court is
cast in the role of a proponent for the defense, rather than an independent
entity.'"    Haley v. Dormire, 845 F.2d 1488, 1490 (8th Cir. 1988) (quoting
Nash v. Black, 781 F.2d 665, 668 (8th Cir. 1986)); see also Harkins v.
Eldredge, 505 F.2d 802, 804 (8th Cir. 1974) (per curiam); Remmers v.
Brewer, 475 F.2d 52, 53-54 & n.2 (8th Cir. 1973).       We recently stated that
the Federal Rules of Civil Procedure contemplate that the service-of-
process requirement includes the filing of responsive pleadings.         See Hake
v. Clarke, 91 F.3d 1129, 1131-32 (8th Cir. 1996) (per curiam).                Here,
defendants answered the complaint and filed responsive pleadings, yet both
the magistrate judge and the district court failed to consider those
pleadings on their merits.      Except as otherwise authorized by the Prison
Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996),
we find no support for the district court to conduct an initial review of
all nonprisoner pro se fee-paid complaints under Rule 12(b)(6) before
service of




                                      -4-
process and responsive pleadings.     We reaffirm that the procedures set
forth in the District of Nebraska's Local Rule 83.10(d)(2) do not comply
with the Federal Rules nor with our circuit's precedents, and cannot stand.


     Reviewing the merits de novo, see Dorothy J. v. Little Rock Sch.
Dist., 7 F.3d 729, 731 (8th Cir. 1993), we agree that Porter failed to
state a claim upon which relief could be granted.     Porter did not allege
he exhausted his administrative remedies as required under the FTCA and 26
U.S.C. § 7433, and exhaustion is a jurisdictional prerequisite.         See
Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993), cert.
denied, 510 U.S. 1109 (1994).    To the extent Porter requested declaratory
relief, the Declaratory Judgment Act, 28 U.S.C. § 2201(a), like the Anti-
Injunction Act, 26 U.S.C. § 7421, forbids suits for the purpose of
restraining the assessment or collection of any tax, see Bob Jones Univ.
v. Simon, 416 U.S. 725, 732 n.7 (1974), and Porter did not allege his
claims fell within the limited judicial exception set forth in Enochs v.
Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962).    Porter is also
foreclosed from asserting a Bivens claim against defendants in their
individual capacities.   See Vennes v. An Unknown Number of Unidentified
Agents of United States, 26 F.3d 1448, 1453-54 (8th Cir. 1994), cert.
denied, 115 S. Ct. 721 (1995).    Thus, dismissal was proper.   Accordingly,
we affirm the judgment of the district court.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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