D'Addabbo v. Smith et al
Filing
45
MEMORANDUM DECISION AND ORDER OVERRULING PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE'S REPORTS AND RECOMMENDATIONS & ADOPTING REPORTS AND RECOMMENDATIONS-finding as moot 32 Motion to Dismiss ; denying 33 Motion to Remand ; finding as moot 37 Motion to Stay ; finding as moot 39 Motion ; adopting Report and Recommendations re 41 Report and Recommendations.; adopting Report and Recommendations re 42 Report and Recommendations.; denying 6 Motion for Defau lt Judgment; granting 14 Motion to Dismiss ; granting 14 Motion to Dismiss for Failure to State a Claim ; granting 14 Motion to Dismiss for Lack of Jurisdiction ; finding as moot 23 Motion ; re 41 REPORT AND RECOMMENDATIONS re 33 MOTION to Remand to 1st District Court and Memorandum in Support filed by Linda L. D'Addabbo, David J. D'Addabbo., 42 REPORT AND RECOMMENDATIONS re 14 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support . See Order for details. Signed by Judge Clark Waddoups on 9/26/17. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DAVID J. D’ADDABBO, and LINDA L.
D’ADDABBO,
Plaintiff and Consol. Plaintiff,
v.
EVELYN SMITH, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER OVERRULING PLAINTIFF’S
OBJECTION TO MAGISTRATE
JUDGE’S REPORTS AND
RECOMMENDATIONS & ADOPTING
REPORTS AND RECOMMENDATIONS
Case No. 2:16-cv-854-CW-EJF
(Consol. Case 1:17-cv-30)
Judge Clark Waddoups
Magistrate Judge Evelyn J. Furse
Pro se Plaintiff David J. D’Addabbo sues various entities and individuals associated with
the Internal Revenue Service (IRS). 1 Mr. D’Addabbo seeks over two million dollars in damages
from the Defendants, challenging the IRS’s efforts to collect taxes from him and his wife, Linda
L. D’Addabbo, and challenging his 2006 prosecution and conviction for threatening a federal
agent and impeding the IRS. (See generally Dkt. No. 1.) Mr. D’Addabbo makes a number of
legally unintelligible assertions about taxation, the IRS, and the Defendants throughout his
Complaint and other filings. (See id.; e.g., Dkt. Nos. 18, 33, 43.)
The case was assigned to United States District Court Judge Clark Waddoups, who then
referred it to United States Magistrate Evelyn J. Furse under 28 U.S.C. § 636(b)(1)(B). (Dkt. No.
4.) In April 2017, the court consolidated this case with a later-filed wrongful lien action initiated
by Mr. D’Addabbo on behalf of himself and Mrs. D’Addabbo. (See Order Consol. Cases, Dkt.
No. 29; D’Addabbo v. I.R.S., No. 1:17-cv-30 (removed April 23, 2017).)
1
Mr. D’Addabbo names the following defendants in his Complaint: “Evelyn Smith an employee
of the IRS Corporation,” “Treasury Inspector General for Tax Administration, and his Agents, as
a corporation with the IRS and the US Treasury Corporation,” and the “United States
Corporation Council of the Inspectors on Integrity and Efficiency.” (See Dkt. No. 1, p. 1.)
1
In August 2017, Judge Furse issued three Reports and Recommendations. Judge Furse
recommended that the court (1) dismiss any criminal claims against the Defendants for lack of
standing; (2) dismiss any Bivens or state personal injury claims related to the 2006 convictions as
barred by the relevant statute of limitations; (3) dismiss any claims generally challenging the
IRS’s authority to collect taxes; (4) dismiss the unlawful fine and wrongful lien claims for lack
of jurisdiction and grant leave to amend those claims; (5) dismiss without prejudice any fraud
and civil conspiracy claims for failure to state a claim; (6) deny Mr. D’Addabbo’s Motion for
Default Judgment and Motion to Remand, and strike Mr. D’Addabbo’s “Judgment by Default,”
(Dkt. No. 35); and (7) quash service of process in this action, providing Mr. D’Addabbo an
additional thirty (30) days to serve the Defendants in compliance with Rule 4. (See Dkt. Nos. 40,
41, 42.)
Mr. D’Addabbo filed an Objection to Judge Furse’s Reports and Recommendations,
(Dkt. No. 43), and the Defendants filed a Response, (Dkt. No. 44). Mr. D’Addabbo’s Objection
fails to respond to the substance of Judge Furse’s recommendations; rather, Mr. D’Addabbo
continues to assert unfounded conspiracy theories with no factual support, claim that settled law
and procedures do not apply to him, and impugn the judiciary. (See Dkt. No. 43.)
Nevertheless, the court has conducted a de novo review of the record and Judge Furse’s
findings. Consistent with Judge Furse’s treatment of the case, the court liberally construes Mr.
D’Addabbo’s filings and holds them to a “less stringent standard than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). But the court does not “take on the responsibility of serving as the litigant’s
attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). The court will not supply additional factual
2
allegations or construct a legal theory on Mr. D’Addabbo’s behalf. See Smith v. United States,
561 F.3d 1090, 1096 (10th Cir. 2009). Moreover, despite Mr. D’Addabbo’s protestations, pro se
litigants must follow the same rules of procedure as other litigants. Kay v. Bemis, 500 F.3d 1214,
1218 (10th Cir. 2007).
The court detects no legal error in Judge Furse’s thoughtful analysis and measured
conclusions. Judge Furse properly construed Mr. D’Addabbo’s Complaint to state several
possible claims, and addressed each one in turn, correctly finding that Mr. D’Addabbo failed to
properly effect service in this case; lacks standing to bring criminal charges; is time barred from
challenging the 2006 prosecution and convictions; and fails to state claims for unlawful fine and
wrongful lien, as well as fraud and/or conspiracy. Mr. D’Addabbo cannot simply assert that he
has suffered unconstitutional harms while simultaneously flouting the law and procedures
required to assert a legally sufficient claim. See Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir.
1995) (observing that “even pro se litigants must do more than make mere conclusory statements
regarding constitutional claims”); see also Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir.
2007) (noting that it is “not the district court’s job to stitch together cognizable claims for relief
from . . . wholly deficient pleading[s] . . . [and] we are loath to reverse a district court for
refusing to do the litigant’s job”).
Additionally, the court will not address or entertain Mr. D’Addabbo’s disparagements of
the judiciary. “Personal attacks on the judiciary and a party’s counsel are no substitute for
reasoned arguments . . . .” Baer v. Salt Lake City Corp., No. 16-4186, ___ F. App’x ___, 2017
WL 3446870, at *3 (10th Cir. Aug. 11, 2017) (unpublished) (citing Garrett, 425 F.3d at 841). 2
2
This and all other unpublished decisions are not precedential, but are cited for their persuasive
value. See Fed. R. App. 32.1; 10th Cir. App. R. 32.1.
3
Thus, upon de novo review of Judge Furse’ findings, the court APPROVES AND
ADOPTS Judge Furse’s Reports and Recommendations in their entireties. (Dkt. Nos. 40, 41,
42.) Accordingly, following the Reports and Recommendations, and for the reasons stated
therein, the court hereby ORDERS as follows:
•
Mr. D’Addabbo’s Motion for Default Judgment (Dkt. No. 6) and Motion to
Remand (Dkt. No. 33) are DENIED;
•
Mr. D’Addabbo’s “Judgment by Default” (Dkt. No. 35) is STRICKEN; and
•
Defendants’ Motion to Dismiss (Dkt. No. 14) is GRANTED, with leave for Mr.
D’Addabbo to amend his Complaint, with the following conditions: Mr.
D’Addabbo may reassert, if he chooses, unlawful fine and/or wrongful lien
claims, and fraud and/or civil conspiracy claims. These claims must comply with
the federal law and pleading standards discussed in Judge Furse’s Report and
Recommendation on Defendants’ Motion to Dismiss, (Dkt. No. 42). Mr.
D’Addabbo may not reassert any criminal claims against the Defendants; any
Bivens or state personal injury claims related to the 2006 convictions; or any
claims generally challenging the IRS’s authority to collect taxes.
The court cautions Mr. D’Addabbo that if he chooses to include his wife as a plaintiff in
an amended complaint, Mr. D’Addabbo and Mrs. D’Addabbo must each sign any filings they
submit in accordance with Federal Rule of Civil Procedure 11. 3
Finally, the court QUASHES service of process in this action, and provides Mr.
D’Addabbo an additional thirty (30) days to serve the Defendants in compliance with Rule 4, per
3
As a non-lawyer, Mr. D’Addabbo may proceed pro se on behalf of his own claims but may not
act as unlicensed counsel to bring the claims of others. Adams ex rel. D.J.W. v. Astrue, 659 F.3d
1297, 1299–1300 (10th Cir. 2011).
4
the instructions in Judge Furse’s Report and Recommendation on Mr. D’Addabbo’s Motion for
Default Judgment, (Dkt. No. 40).
All other motions pending in this action are denied as MOOT.
SO ORDERED this 26th day of September, 2017.
BY THE COURT:
______________________________
CLARK WADDOUPS
United States District Judge
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