United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Scott
T. Varholak United States Magistrate Judge
This
civil action is before the Court on three Motions filed by
Plaintiff: (1) Plaintiff's “Pro Se Pleading Form,
” which the Court construes as Plaintiff's motion
to proceed in forma pauperis (“IFP”)
(“Motion to Proceed IFP”) [#9]; (2)
Plaintiff's “Motion [to] Request [United States]
Marshal[s] Service [(“USMS”) Service] of Summons
Upon Defendants” (“Motion for Service by
USMS”) [#65]; and (3) Plaintiff's “Request to
Change Venue to District of Massachusetts”
(“Motion to Transfer”) [#91] (collectively
“the Motions”). The Motions have been referred to
this Court. [##67, 94, 96] This Court has carefully
considered the Motions and related briefing, the entire case
file and the applicable case law, and has determined that
oral argument would not materially assist in the disposition
of the Motions. For the following reasons, the Court
respectfully RECOMMENDS that the Motions be
DENIED.
I.
BACKGROUND
Plaintiff,
proceeding pro se, [1] filed the instant action alleging that
Defendants violated various state and federal laws during his
employment with, and ultimate termination from, the City and
County of Denver. [#20] Plaintiff originally filed this
action in April 2018. [#1] Plaintiff was twice ordered to
file an amended complaint for failure to comply with Federal
Rule of Civil Procedure 8. [##4, 10] Plaintiff filed his
Second Amended Complaint, the operative complaint in this
matter, on July 26, 2018. [#20]
On
October 26, 2018, this Court entered a minute order noting
that Plaintiff had failed to serve any of the Defendants
within the time limit for effecting service under Federal
Rule of Civil Procedure 4(m). [#29] United States District
Court Judge Robert E. Blackburn ordered Plaintiff to show
cause why his claims should not be dismissed for failure to
effectuate timely service of process pursuant to Rule 4(m).
[#33] Judge Blackburn discharged the Order to Show Cause
based on Plaintiff's representation that he had provided
copies of the summonses and the Second Amended Complaint to a
process server to be served on all Defendants. [#35] Judge
Blackburn ordered Plaintiff to file proofs of service for all
Defendants by no later than December 13, 2018. [Id.
at 2]
On
December 13, 2018, Plaintiff filed a Notice of Proof of
Service. [#50] That document includes affidavits for personal
service of the Workforce Development Board [#50-1 at 1-2],
the Workforce Investment Board [#50-2 at 1], Valerie
McNaughton [#50-6 at 1], and William Glassman [#50-13 at 1].
Plaintiff's process server was unable to serve Defendants
Chiquita McGowin [#50-3]; Suzanne Iversen [#50-4]; Amy
Edinger [#50-5]; Rebecca Balu [#50-7], Kathleen McCleary
[#50-8], Cindy Ackerman [#50-11], or Ryan Brandt
[#50-12].[2] Plaintiff has provided no evidence of
attempts to serve Defendants Hinderlighter, Taylor, Merrick,
or the Career Service Authority.
Plaintiff
claimed that Defendants McGowin, Iversen, Edinger, Balu,
McCleary, Ackerman, and Brandt were served by mail. [##50-3,
50-4, 50-5, 50-7, 50-8, 50-11, 50-12] Plaintiff also filed a
list of unexplained purchase receipts for first-class
postage, apparently through the United States Post Office.
[#39] As this Court explained, to the extent Plaintiff has
attempted to serve any Defendants by mail, service by mail is
not a proper method of service under Federal Rule of Civil
Procedure 4(e) or Colorado law. [#43 (citing Colo. R. Civ. P.
4 (g) ("[S]ervice by mail or publication shall be
allowed only in actions affecting specific property or status
or other proceedings in rem."); Fed.R.Civ.P. 4(e)(1)
("[A]n individual . . . may be served . . . [by]
following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is
made."))]. At a hearing on January 7, 2019, this Court
denied Plaintiff's Ex Parte Motion for Exemption of
Standard Process Service [#51] to the extent Plaintiff sought
to serve Defendants by United States Postal Service First
Class Mail [#95].
II.
ANALYSIS
In the
instant Motions, Plaintiff seeks to proceed IFP and requests
the USMS to effect service on his behalf. [##9, 65] Plaintiff
also moves to transfer this matter to the United States
District Court for the District of Massachusetts. [#91] The
Court addresses each Motion in turn.
A.
Motion to Proceed IFP
On June
5, 2018, Plaintiff filed a document entitled “Pro Se
Pleading Form.” [#9] Based on representations from
Plaintiff at a hearing held on January 7, 2019, the Court
understood this document to be Plaintiff's Motion to
Proceed IFP [#95], and the Motion was referred to this Court
[#96].
Pursuant
to 28 U.S.C. § 1915(a)(1), a court “may authorize
the commencement . . . of any suit . . . without prepayment
of fees . . ., by a person who submits an affidavit”
stating all assets and that “the person is unable to
pay such fees.” In Plaintiff's Motion to Proceed
IFP, Plaintiff indicated his annual income and described his
monthly assets and expenses. [#9] Plaintiff also, however,
remitted the Court's filing fee. [See #1] The
Tenth Circuit has “uniformly held that payment of
filing fees causes requests to proceed IFP to become
moot.” Burgess v. Daniels, 578 Fed.Appx. 747,
751 (10th Cir. 2014) (collecting cases); see also Golden
v. Kaiser, 1 Fed.Appx. 841, 841 n.1 (10th Cir. 2001)
(denying as moot appellant's request for refund of
previously paid filing fee and to be allowed to proceed IFP,
noting that the appellant “ha[d] not identified any
precedent supporting such a request and th[e] court ha[d] not
discovered any”); Jones v. Richardson, No.
08-3195-RDR, 2010 WL 618132, at *1 (D. Kan. Feb. 19, 2010)
(“The court need not determine whether plaintiff has
filed a motion supported by sufficient financial information
because both motions for leave to proceed [IFP] were rendered
moot by his payment of the filing fee.”).
Because
Plaintiff has paid the Court's filing fee here, any
request to proceed IFP is moot. Accordingly, the Court
RECOMMENDS that Plaintiff's Motion to
Proceed IFP [#9] be DENIED.
B.
Motion for ...