FILED
United States Court of Appeals
Tenth Circuit
December 21, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WAYNE ANDREWS,
Plaintiff–Appellant, No. 12-1171
v. (D.C. No. 1:11-CV-01366-MSK-KLM)
TIMOTHY GEITHNER; DOUGLAS (D. Colorado)
SHULMAN; OFFICER IN CHARGE OF
COLLECTIONS; GARY QUICK;
ROSEANNE MILLER; LISA K. JONES;
ROXY HUBER, in her individual
capacity,
Defendants–Appellees.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
Plaintiff Wayne Andrews, proceeding pro se, appeals the district court’s dismissal
of his civil rights complaint. Plaintiff sued the Secretary of Treasury and four Internal
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Revenue Service employees (together, the Federal Defendants) as well as the former
executive director of the Colorado Department of Revenue (State Defendant), challenging
decisions and actions of the IRS and CDOR. The district court adopted the report and
recommendation of the magistrate judge recommending Plaintiff’s claims against the
Federal Defendants be dismissed with prejudice. First, the magistrate judge concluded
the court lacked personal jurisdiction as a result of Plaintiff’s failure to serve the Federal
Defendants as required by Rule 4(i)(3) of the Federal Rules of Civil Procedure. The
magistrate judge then concluded any attempt to cure the defects in service would be futile
because the Federal Defendants, as federal officials, could not be sued under 42 U.S.C. §§
1981 or 1983, and because the Federal Defendants, as individual agents of the IRS, were
not subject to Bivens actions. The district court likewise adopted the report and
recommendation of the magistrate judge recommending Plaintiff’s claims against the
State Defendant be dismissed with prejudice. The magistrate judge concluded Plaintiff’s
complaint failed to state a claim against the State Defendant under any of the causes of
action he asserted: the State Defendant, as a state official, was not subject to a Bivens
action; Plaintiff’s §1981 claim failed because he did not allege discrimination on the basis
of his race; Plaintiff did not allege sufficient personal involvement to maintain a claim
under § 1983; and Plaintiff failed to plead a violation of his constitutional rights necessary
to support his state law conspiracy claim. Plaintiff appeals each of these decisions.
We turn first to the district court’s dismissal of Plaintiff’s claims against the
Federal Defendants. The Federal Defendants contend that Plaintiff has waived the right
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to challenge the district court’s determination that it lacked personal jurisdiction over
them because Plaintiff failed to object to the magistrate judge’s report and
recommendation on this basis and did not raise the issue in his opening brief. After a
thorough review of the record, we conclude Plaintiff has not waived this issue.
Construing his pleadings liberally, as we must, Plaintiff did object to the magistrate
judge’s conclusion that he had failed to properly serve the Federal Defendants. Although
Plaintiff did not raise this argument in the body of his objection, he filed, as part of his
objection, a separate document titled “Proof of Service,” to which he attached copies of
certified mail receipts, copies of receipts for postage, and proof of mail delivery. (R. at
345-52.) In his opening brief, Plaintiff argued that service was proper, pointing to the
“copies of receipts for the items sent” that he had provided the district court in connection
with his objection. (Appellant’s Opening Br. at 3.) Accordingly, we conclude Plaintiff
has sufficiently preserved this issue for appeal.
Having carefully reviewed the parties’ briefing and the record on appeal, we see no
error in the magistrate judge’s conclusion that Plaintiff failed to properly serve the
Federal Defendants as required by Rule 4(i)(3). Although Plaintiff provided some
evidence he mailed certain items to the Federal Defendants individually, there is no
evidence he complied with the requirements of Rule 4(e), (f), or (g). Accordingly, the
magistrate judge correctly concluded the court lacked personal jurisdiction over the
Federal Defendants. This conclusion, however, required that Plaintiff’s claims against the
Federal Defendants be dismissed without prejudice. Arocho v. Lappin, 461 F. App’x 714,
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719 (10th Cir. 2012) (discussing the “established rule that dismissals for lack of personal
jurisdiction are without prejudice”). As a result, the district court could not then proceed
to resolve Plaintiff’s claims against the Federal Defendants on the merits.
We now turn to the district court’s dismissal of Plaintiff’s claims against the State
Defendant. Here, too, we see no error in the magistrate judge’s or the district court’s
reasoning. Accordingly, and for substantially the same reasons set forth by the magistrate
judge, we AFFIRM the dismissal with prejudice of Plaintiff’s claims against the State
Defendant. In addition, and for substantially the same reasons set forth by the magistrate
judge, we AFFIRM the dismissal of Plaintiff’s claims against the Federal Defendants for
lack of personal jurisdiction. However, we REMAND the matter solely for the district
court to modify its order to reflect that the lack of personal jurisdiction is the basis for its
dismissal of these claims and that the dismissal is without prejudice.
Entered for the Court
Monroe G. McKay
Circuit Judge
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