United States District Court, D. Colorado
ORDER RE: OBJECTIONS TO RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
ROBERT
E. BLACKBURN UNITED STATES DISTRICT JUDGE
The
matters before me are (1) the Recommendation of United States
Magistrate Judge [#97], [1] filed January 8, 2019; (2) movants Amy
Edinger, Suzanne Iversen, Garry Hinterliter (misidentified in
the caption as “Gary Hinderlighter”), Chiquita
McGowin, Ranae Taylor, Rebecca Balu, Kathleen McCleary, Cindy
Ackerman, Ryan Brand (misidentified in the caption as
“Ryan Brandt”), and Kristen Merrick's
Objection By Special Appearance to Recommendation of United
States Magistrate Judge [ECF 97] [#107], filed January 18,
2019; and (3) the objections to the magistrate judge's
recommendation set forth in Plaintiff Motion To Reject
Magistrate Varholak Docket #97 [#110], filed February 1,
2019. Exercising my discretion under D.C.COLO.LCivR 7.1(d), I
rule on the objections without awaiting the benefit of
responses from either plaintiff or defendants. I overrule
plaintiff's objections; sustain defendants'
objections; approve and adopt the recommendation in part and
respectfully reject it in part; deny the substantive motions
addressed by the recommendation; and dismiss without
prejudice the claims against all defendants who have not been
properly and timely served.
As
required by 28 U.S.C. § 636(b), I have reviewed de
novo all portions of the recommendation to which timely
objections have been filed. I have considered carefully the
recommendation, the objections, the underlying motions and
responses, and all applicable caselaw. Substantively, the
recommendation is thorough and well-reasoned, and, after de
novo review, I approve and adopt its conclusions insofar as
they address the merits of plaintiff's pending motions.
However, based on the record before me, as recounted more
fully below, I respectfully must reject the recommendation to
afford plaintiff one final opportunity to attempt to effect
proper service of process.
Because
plaintiff is proceeding pro se, I construe his
pleadings and papers more liberally and hold them to a less
stringent standard than formal pleadings drafted by lawyers.
See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007);
Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30
L.Ed.2d 652 (1972)). Nevertheless, his putative objections to
the recommendation were filed out of time, without
explanation or, apparently, even awareness. The magistrate
judge specifically advised the parties, as required by
Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991) (see Recommendation at 8
n.4), that the failure to file timely and specific objections
would bar de novo review by this court, see
United States v. One Parcel of Real Property, With Buildings,
Appurtenances, Improvements, & Contents, Known as: 2121
E. 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060
(10th Cir.), cert. denied, 117 S.Ct. 271
(1996). Plaintiff's pro se status does not
absolve him of the responsibility to comply with the Federal
Rules of Civil Procedure. Nielsen v. Price, 17 F.3d
1276, 1277 (10thCir. 1994) (“This court has
repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants.”)
(citation and internal quotation marks omitted). Thus, I
would overrule plaintiff's objections on procedural
grounds alone.
Even
were I to consider those objections substantively, however,
they are meritless.[2] With respect to plaintiff's motion to
proceed in forma pauperis, the law of this circuit,
as cited by the magistrate judge, could not be clearer:
payment of the filing fee moots any request for indigent
status. Burgess v. Daniels, 578
Fed.Appx. 747, 750-51 (10th Cir. Aug. 19, 2014)
(“[P]anels of this court have uniformly held that
payment of filing fees causes requests to proceed IFP to
become moot;” citing numerous cases). Thus, having paid
the filing fee to initiate this case, plaintiff cannot now
claim to be too indigent to prosecute it.
Yet
even considered on the merits, plaintiff's motion does
not establish an entitlement to proceed IFP. After taxes, an
individual living in Massachusetts earning plaintiff's
salary of $45, 000 a year (see [#9]
at 1) would net $35, 677. See
neuvoo, Income Tax Calculator, Massachusetts, USA (available
at: https://neuvoo.com/tax-calculator/Massachusetts-45000)
(last accessed February 5, 2019). That figure equates to
nearly $3, 000 a month in take-home pay. By contrast,
plaintiff reports only $906.00 in monthly expenses
(see [#9] at 3), leaving some $2,
000 a month in disposable income. Plaintiff thus has not
substantiated his claim of indigence and is not entitled to
proceed IFP.
Regarding
his motion for service by the United States Marshal,
plaintiff protests only that the magistrate judge's view
was “uninformed” by the application to proceed
IFP. For the reasons set forth above, plaintiff has not shown
he lacks the funds necessary to serve defendants without the
aid of the Marshal. The so-called “special
circumstances” plaintiff suggests warrant alternative
means of service are discussed more fully
below.[3] Suffice to say here, they do not justify
resort to court-assisted service of process. For these
reasons, I overrule plaintiff's objections.[4]
For
their part, defendants object to the recommendation only
insofar as it suggests plaintiff be afforded an additional
three weeks in which to attempt once more to serve them.
After reviewing the record in this case, I find this
objection to have traction. I therefore respectfully reject
this portion of the recommendation and order plaintiff's
claims against these movants, as well as all other defendants
who have not been served properly, dismissed without
prejudice.
The
operative complaint in this matter was filed on July 26,
2018. Thereafter, plaintiff had 90 days - or until October
24, 2018 - to serve defendants. See Fed. R.
Civ. P. 4(m). When he did not, the magistrate judge
issued a recommendation that the case be dismissed ([#32]),
which this court followed with an Order To Show
Cause ([#33]) why the case should not be dismissed
for failure to effect timely service of process. I discharged
that order (see [#35]) after
plaintiff assured me the summonses were in the hands of a
process server at the time he received the magistrate
judge's recommendation to dismiss and simply awaiting his
instruction to be delivered (see
[#34]). I granted him an extension of the deadline to
December 13, 2018, service.
On or
about that date, plaintiff sent a series of ex parte
communications to the email account of the magistrate
judge's chambers. (See [#43].)
The magistrate judge ordered these improperly submitted
documents to be placed on the public docket. They included
“notices” ostensibly showing that plaintiff had
attempted to serve movants Ms. Edinger ([#50-5]), Ms. Iversen
([#50-4]), Ms. McGowin ([#50-3]), Ms. Balu ([#50-7]), Ms.
McCleary ([#50-8]), Ms. Ackerman ([#50-11], and Mr. Brand
([#50-12]) by United States mail.[5] As the magistrate judge
clearly advised plaintiff at that time, service by mail was
not proper. Rather than attempt serve defendants as required
by Rule 4(m), however, plaintiff instead moved first for an
exemption from that requirement to allow him to file by mail
(see [#51]), and then for service
by the United States Marshal (see
[#65]).
The
alleged “exceptional circumstances” which
plaintiff suggested warranted these requested exemptions (for
which there is no actual legal authority) were only
exceptional insofar as they were wholly brought on by
plaintiff himself. The email chain between plaintiff and his
Denver-based process server, appended to plaintiff's
motion for service by mail, shows that after the City and
County of Denver (through the Mayor's Office) refused to
accept service of process on behalf of those defendants who
were no longer employed by the City, the process server was
poised to attempt service on these individuals at their home
addresses on or about November 29, 2018. (See [#51]
at 6.) Instead, plaintiff questioned why the City had
directed service to the Mayor's Office and ordered the
process server to halt further efforts to serve
“[u]ntil I hear answers.” (Id. at 6-7.)
Thereafter, plaintiff was more focused on berating the
process server, through increasingly vitriolic attacks, than
on serving defendants properly.[6]
It
therefore appears to this court that plaintiff has not
attempted in good faith to properly serve these defendants.
It has now been nearly 200 days since this action was filed,
with no proper service ever having been attempted on these
defendants, for reasons that appear to this court to have
little relation to plaintiff's professed indigence or any
intransigence by the process server and more to do with
plaintiff's own obstinance and inability to overcome
momentary frustration or accept neutral explanations. The
circumstances outlined above do not show good cause for the
failure to serve, as required by Rule 4(m) to justify a
further extension of the deadline. Indeed, it appears clear
plaintiff has no intention of serving these defendants
properly. I see little to be gained by affording him
additional time when he has shown no inclination to comply
with the law or the duly issued orders of the court in any
event.
I
therefore respectfully reject the magistrate judge's
recommendation to extend the deadline for service any
further, and will order plaintiff's claims against all
unserved defendants dismissed without prejudice for failure
to effectuate timely and proper service of process.
THEREFORE,
IT IS ...