Saunders v. McEntire et al

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/28/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00804-GPG
JONATHAN P. SAUNDERS,
Plaintiff,
v.
CATHERINE FRYE McENTIRE, Individually, and
CATHERINE FRYE McENTIRE, licensed Professional Architect, license, Virginia
Architect license number 0401009441,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Jonathan P. Saunders, initiated this action by filing pro se a Complaint
(ECF No. 1). Mr. Saunders apparently contends the Court has jurisdiction over this
action based on diversity of citizenship pursuant to 28 U.S.C. § 1332, although he does
not provide a clear and concise statement of the specific claim or claims he is asserting
against Defendant. Mr. Saunders alleges he was falsely charged with identify theft in
federal court in San Antonio because Defendant “willfully and knowingly lied to federal
prosecutors and investigators.” (ECF No. 1 at 1.) He further alleges that
[t]he Plaintiff at the time this occurred owned an engineering
and architectural firm that was doing business with the
Veterans Administration under a SBA set aside program for
Veteran Owned, and Service Disabled Veteran Owned Small
Businesses. By lying about her contact with the Plaintiff and
his company, the Defendant caused the Plaintiff to ultimately
lose his business, be barred from doing business with the
federal government, have irreparable damage done to his
personal and business reputation, and has caused the
defendant [sic] to lose his home and personal assets leaving

the Plaintiff destitute and homeless.
(Id. at 5.) According to the Judgment entered in his criminal case in the United States
District Court for the Western District of Texas, San Antonio Division, a copy of which is
available on the Public Access to Court Electronic Records (“PACER”) website, Mr.
Saunders ultimately agreed to plead guilty to one count of wire fraud. See United
States v. Saunders, No. 5:13-cr-00197-OLG-1 (W.D. Tex. Feb. 19, 2015). His sentence
includes a term of imprisonment for twelve months and one day, three years of
supervised release, and an order to pay restitution to the government in the amount of
$1,494,467.29. Mr. Saunders is not required to report for service of his sentence prior
to August 4, 2015.
Mr. Saunders alleges that Defendant is a resident of Virginia and there is no
indication in the Complaint that any of the acts complained of occurred in the District of
Colorado. Therefore, on April 21, 2015, Magistrate Judge Gordon P. Gallagher ordered
Mr. Saunders to show cause why this action should not be dismissed or transferred
pursuant to 28 U.S.C. § 1406(a) because of improper venue. Mr. Saunders was
warned that the action would be dismissed or transferred without further notice if he
failed to show good cause within thirty days.
Mr. Saunders has not shown cause as directed and he has failed to respond in
any way to Magistrate Judge Gallagher’s April 21 order. However, Mr. Saunders has
initiated a separate lawsuit against Defendant in the United States District Court for the
Eastern District of Virginia based on the same factual allegations. See Saunders v.
McEntire, No. 2:15-cv-00190-MSD-TEM (E.D. Va. filed May 7, 2015). Because Mr.
Saunders has filed a separate lawsuit against Defendant based on the same factual
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allegations, the instant action will not be transferred. Instead, the action will be
dismissed without prejudice for improper venue.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that the Complaint (ECF No. 1) and the action are dismissed without
prejudice pursuant to 28 U.S.C. § 1406(a) for improper venue. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

28th

day of

May

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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