Palmer v. City & County of Denver, The et al

Filing 117

ORDER RE: OBJECTIONS TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. The Recommendation of United States Magistrate Judge [# 97 ] is approved and adopted as an order of this court in part and, respectfully, rejected in part. The objections t o the recommendation set forth in Plaintiff Motion To Reject Magistrate Varholak Docket #97 [# 110 ] are overruled. The objections stated in the Objection By Special Appearance to Recommendation of United States Magistrate Judge [ECF 97] [# 107 ] is sustained. Plaintiff's Motion To Proceed In Forma Pauperis [# 9 ] is denied. Plaintiff's Motion: Request Marshall [sic] Service of Summons Upon Defendants [# 65 ] is denied. Plaintiff Request To Change Venue to Dis trict of Massachusetts [# 91 ] is denied. Plaintiff's claims against defendants, 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"); Kristen Merrick; and the Career Service Authority, are dismissed without prejudice for failure to effect timely or proper service of process. By Judge Robert E. Blackburn on 02/06/2019. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 18-cv-01003-REB-STV
MARK PALMER,
Plaintiff,
v.
THE CITY & COUNTY OF DENVER, et al.,
Defendants.

ORDER RE: OBJECTIONS TO RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
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

1

“[#97]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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

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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 (10th
Cir. 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, 75051 (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,

2

Plaintiff’s representations as to whether he “approved” the version of the Amended Complaint
docketed as document 20 or whether other docket entries are properly designated have no obvious
bearing on any issue raised by or inherent to the magistrate judge’s resolution of the three motions
referred to him. I therefore do not consider them.

3

Income Tax Calculator, Massachusetts, USA (available at: https://neuvoo.com/taxcalculator/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

3

Although plaintiff suggests the magistrate judge has not ruled on his motion for substitute
service by mail ([#51]), he is mistaken. The magistrate judge denied that motion substantively on the
record during the status conference on January 7, 2019 ([#95]).
4

Plaintiff proffers no objection to the magistrate judge’s recommendation to deny his motion to
change venue to Massachusetts. I find no error, much less plain error, in that conclusion. Nothing in the
motion suggests any defendant has the kind of contacts, either specific or general, with Massachusetts
that would make assumption of jurisdiction over them proper in that forum, as the magistrate judge ably
explained. The mere fortuity that plaintiff now happens to reside outside Colorado does not justify
requiring these Colorado defendants, in a case arising entirely from actions that occurred allegedly in this
state, to try this case in a distant, wholly unrelated forum simply for plaintiff’s convenience.

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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
5

The record reflects no attempts to serve, properly or otherwise, Mr. Hinterliter, Ms. Taylor, or
Ms. Merrick. There is also no evidence that defendant Career Service Authority has ever been served.

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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
6

Plaintiff refused to accept the process server’s response that directing process to the Mayor’s
Office was the City’s standard policy in accepting service and instead demanded she get “full contact
information for the person telling you to go the Mayor’s Office,” barring which, plaintiff threatened to report
the matter both to this court and to the FBI. (See [#51] at 8-9.) He then launched a protracted, angry
email diatribe on the process server, in which he, inter alia, claimed she was holding his documents for
ransom (id. at 10), accused her of “obstruction of justice” and “fraudulent business practices” (id.), and
threatened legal action against her unless she returned his payment (id. at 12). Even after the process
server returned the unserved subpoenas and affidavits along with a check for those that had not been
served, plaintiff continued to berate her with increasingly virulent threats of legal action, demanding “clean
copies” of the affidavits, i.e., copies that did not have the handwritten notation “old summons” on them
(although according to the process server, that notation was added only to what was, in fact, an old
summons). (Id. at 13-18.)

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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 ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#97], filed
January 8, 2019, is approved and adopted as an order of this court in part and,
respectfully, rejected in part, as follows:
a. That the recommendation is approved and adopted as an order of this
court as to the substantive resolution of the pending motions referred to
the magistrate judge for recommendations; and
b. That the recommendation is respectfully rejected insofar as it
recommends plaintiff be afforded additional time in which to effectuate
service of process;

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2. That the objections to the recommendation set forth in Plaintiff Motion To
Reject Magistrate Varholak Docket #97 [#110], filed February 1, 2019, are overruled;
3. That the objections stated in the Objection By Special Appearance to
Recommendation of United States Magistrate Judge [ECF 97] [#107], filed January
18, 2019, is sustained;
4. That plaintiff’s Motion To Proceed In Forma Pauperis [#9], filed June 5,
2018, is denied;
5. That plaintiff’s Motion: Request Marshall [sic] Service of Summons Upon
Defendants [#65], filed December 24, 2018, is denied;
6. That Plaintiff Request To Change Venue to District of Massachusetts
[#91], filed January 4, 2019, is denied; and
7. That plaintiff’s claims against defendants, 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”); Kristen Merrick; and the Career
Service Authority, are dismissed without prejudice for failure to effect timely or proper
service of process.
Dated February 6, 2019, at Denver, Colorado.
BY THE COURT:

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