Palmer v. City & County of Denver

          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 ...