United States District Court, D. Utah, Central Division
DAVID J. D'ADDABBO, and LINDA L. D'ADDABBO, Plaintiff and Consol. Plaintiff,
EVELYN SMITH, et al., Defendants.
MEMORANDUM DECISION AND ORDER OVERRULING
PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE'S REPORTS
AND RECOMMENDATIONS & ADOPTING REPORTS AND
WADDOUPS, UNITED STATES DISTRICT 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). 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.)
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).)
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.)
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.)
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 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
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
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
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
• Mr. D'Addabbo's “Judgment by
Default” (Dkt. No. 35) is STRICKEN;
• 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.
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.
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 the instructions in Judge Furse's Report and