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Nabaya v. Dudeck

United States District Court, D. Columbia.

April 28, 2014

SHAPAT AHDAWAN NABAYA, Plaintiff,
v.
JOHN A. DUDECK, JR., Defendant

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[Copyrighted Material Omitted]

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SHAPAT AHDAWAN NABAYA, Petitioner, Pro se, Richmond, VA.

For JOHN A. DUDECK, JR., Respondent: Geoffrey John Klimas, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

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MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

Plaintiff Shapat Ahdawan Nabaya, proceeding pro se, alleges that the actions of defendant John Dudeck, Jr., formerly an attorney with the Department of Justice Tax Division, violated his rights under the United States Constitution. See Petition for a Writ of Mandamus (" Compl." ) at 8-9.[1] This matter is before the Court on the

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defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(2), (b)(5), and (b)(6) (" Def.'s Mot." ) and the plaintiff's motions to amend his complaint and for recusal of the undersigned. For the reasons set forth below, the Court will grant the plaintiff's motion to amend his complaint to add Geoffrey Klimas as a defendant but will sua sponte dismiss the claim relating to him, deny the plaintiff's remaining motions, and grant the defendant's motion to dismiss this case with prejudice.[2]

I. BACKGROUND

The Court has struggled with little success to distill exactly what the plaintiff is asserting in his complaint, and thus must resort to the defendant's brief and submissions in its attempt to discern the relevant factual background. What follows is that assessment.

At some time prior to the filing of the plaintiff's complaint, the Internal Revenue Service (" IRS" ) attached a levy to his pension to obtain payment for outstanding taxes. See Compl. at 9, 12, 16, 19; Def.'s Mem. at 5. The defendant represented the United States in a case concerning the legality of the levy before the United States Court of Appeals for the Federal Circuit, which was subsequently transferred to the United States Court of Appeals for the Fourth Circuit. See Compl. at 16; Def.'s Mem. at 5. During the pendency of that case, the plaintiff moved to add Dudeck as a defendant in that case. Compl. at 20.

The plaintiff alleges that Dudeck's conduct during the case before the Federal Circuit was wrongful because (1) " he represented the Government in a case that had conflicting orders in it," (2) he " represent[ed] the Government in a case where the Government does not have [a] superior interest," and (3) he " erred by representing the Government in said case while proof was submitted in court concerning a conflict of interest in the proceedings," actions that the plaintiff alleges violated the Fourth, Fifth, Thirteenth, and Fourteenth Amendments, as well as Article I, Section 10, Clause 1 of the United States Constitution. See id. at 7-8, 12. The plaintiff also notes that " there is no record that the [IRS] filed all [its] documents under the penalty of perjury like the petitioner did," id. at 17, and that the plaintiff " is not in possession of the oath of office and bond of this employee proving that he

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is in fact a government employee," id. at 19, two complaints that the plaintiff has repeatedly raised in his filings, see, e.g., Pl.'s Opp'n at 1-2. Finally, the plaintiff also appears to challenge the legality of the levy attached to his pension, although he has provided the Court with no facts about the levy except that there is no court order authorizing it. See Compl. at 9, 12, 19. As relief, he seeks a writ of mandamus against the defendant, see id. at 16-17, and compensatory and punitive damages of $400,000, see id. at 18.

The defendant has moved to dismiss the plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(2), (b)(5), and (b)(6), with prejudice. Def.'s Mot. at 1-2. The defendant has also informed the Court of the plaintiff's four previous lawsuits concerning the validity of the levy on his pension. Def.'s Mem. at 3-5. In response, the plaintiff filed two oppositions and motions to amend his complaint to add the attorney of record in this case, Geoffrey Klimas; the attorney who currently represents the United States in the plaintiff's case before the Fourth Circuit, Robert J. Branman; the Clerk of this Court; the United States Attorney General; and the United States Secretary of State as defendants in this litigation.

The plaintiff has also filed a document entitled " Petition for a Writ of Mandamus" listing the above-captioned case number with a modified caption identifying this Court as the Court to which it is directed and entitled " In Rem: Shapat A. Nabaya [v]s. Reggie B. Walton." Mot. Recuse at 1. In the document, the plaintiff alleges generally that the undersigned is violating the Constitution and several statutes by not immediately granting the plaintiff a writ of mandamus against the defendant, and requests " that this court issue an order directing defendant Walton to serve the defendants in the lower court with subpoenas, Writs, hold an evidentiary hearing and give a date for a jury trial or show cause why these ministerial duties can not [sic] be performed." Id. at 1-2, 4.

II. STANDARDS OF REVIEW

A. Federal Rule of Civil Procedure ...


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