Kuciapinski v. Ennis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 24–cv–02181–MDB
MYKHAEL KUCIAPINSKI,
Plaintiff,
v.
DONNA F. ENNIS,
DANA M. GRANT,
LYNN J. MATESI,
JEFFEREY A. JOHNSON,
NICOLAS A. BUDENZ
JESSE NEWHART,
TERRELL HARRIS,
STEVE KERLEY,
DEBORAH MCCABE,
KEITH M. GIVEN,
ANTHONY (LAST NAME UNKNOWN), Resident Agency DCIS Supervisor,
UNKNOWN WASHINGTON DC AREA FEDERAL AGENTS 1-3,
UNKNOWN FEDERAL AGENTS 1-12
DERMOT O’REILLY,
KELLY MAYO,
JEREMY SIBERT, and
JASON DUNN
Defendants.
ORDER
This matter comes before the Court sua sponte on Plaintiff’s attempts to effectuate
service in this matter and on her Motion for a Variance in Federal Rules of Civil Procedure Rule
4. ([“Motion”], Doc. No. 25.)
SUMMARY FOR PRO SE PLAINTIFF
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The Court construes your Motion as a request for substitute service. Because the alternate
form of service you propose is not consistent with due process, the Court must deny your
Motion. Additionally, you are now long-past the deadline to serve Defendants and failure to
serve ordinarily results in dismissal of your claims. However, the Court understands it is difficult
to navigate service issues when you are pro se. Therefore, the Court will give you one final
opportunity to serve the Defendants in a manner that fully complies with the Rules. Failure to
satisfy the requirements of all applicable service rules may result in dismissal of your claims.
This is only a high- level summary—the full decision is set forth, below.
BACKGROUND
Plaintiff initiated this action on August 5, 2024. (Doc. No. 1.) In her Complaint, Plaintiff
asserts six claims for relief in connection with various aspects of a now-terminated federal
criminal prosecution against her.1 (Doc. No. 1.)
On November 25, 2024, the Court directed Plaintiff to show cause, on or before
December 20, 2024, why Defendants should not be dismissed from this case in connection with
Plaintiff’s failure to effect timely service pursuant to Federal Rule of Civil Procedure 4(m). (Doc.
No. 15.) Plaintiff filed a Response to the OSC on December 9, 2024. (Doc. No. 16.) In her
Response, Plaintiff attached photos of certified mail receipts for Defendants Ennis, Grant,
Matesi, Budenz, Newhard, Harris, Kerley, McCabe, Given, Mayo, Sibert, and Dunn. (Doc. Nos.
16-5; 16-6; 16-7; 16-8; 16-9; 16-10; 16-11; 16-12; 16-13, 16-14; 16-15; 16-16.) She also
1 Though not entirely clear, all Defendants appear to be current or former officials of the United
States. (See generally Doc. No. 1.) These individuals are sued in their individual and official
capacities. (See Doc. No. 20.)
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attached certified mail receipts for United States Attorney General Merrick Garland, Colorado
Attorney General Phil Weiser, and Acting United States Attorney for the District of Colorado
Matt Kirsch. (Doc. Nos. 16-2; 16-3; 16-4.)
This was insufficient proof of service. See Fed. R. Civ. P. 4(i)(3) (“To serve a United
States officer or employee sued in an individual capacity for an act or omission occurring in
connection with duties performed on the United States’ behalf [whether or not the officer or
employee is also sued in an official capacity], a party must serve the United States and also serve
the officer or employee under Rule 4(e).”). However, given Plaintiff’s pro se status and efforts,
the Court discharged the OSC and gave Plaintiff another opportunity to effect service.
Specifically, the Court extended Plaintiff’s time to serve Defendants in their individual
capacities, through and until April 15, 2025. (Doc. No. 21 at 5.) Additionally, the Court noted
that Fed. R. Civ. P. 4(i)(3) requires personal service (Id. at 3–4); see also Fed. R. Civ. P. 4(e)
(governing the rules for personal service of a defendant).
On April 14, 2025, Plaintiff filed the instant Motion, asking the Court to “deem[ ] all
Defendants already served in their official capacity, as also being served in their individual
capacity.” (Id. at 1.) Plaintiff says this is necessary because Defendants are avoiding this action,
she has incurred significant cost to achieve service, and Defendants “home addresses are entirely
obscured and unknowable.” (Id. at 1–2.) The Court construes Plaintiff’s Motion as a request to
authorize substitute service2
ANALYSIS
2 “A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
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In her Motion, Plaintiff essentially asks the Court for leave to employ a form of
substituted service upon Defendants. That is, Plaintiff asks the Court to rule that her certified
mailings to Defendants at their places of employment—rather than personal service—are
sufficient to constitute effective service on Defendants in their individual capacities.
“For a substituted method of service to be valid, it must comport with due process by
being calculated ‘to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’” Zayo Grp., LLC v. Veteran Commc'ns Grp., Inc., 2021
WL 5719855, at *1 (D. Colo. Feb. 18, 2021) (quoting Mullane v. Central Hanover Bank & Trust
Co., 399 U.S. 306, 314 (1950)).
A due process guarantee is built in to the concept of substituted service in
Colorado. Before authorizing substituted service, a Colorado court must consider
whether delivery of process to the substituted person “is appropriate under the
circumstances and reasonably calculated to give actual notice to the [defendant].”
Only after determining that due process is satisfied and substituted service
appropriate, does a court order that a copy of process be mailed to the defendant.
Willhite v. Rodriguez-Cera, 274 P.3d 1233, 1240-41 (Colo. 2012) (quoting Colo. R. Civ. P.
4(f)).
Here, Plaintiff’s proposed method of service (certified mail) does not comport with due
process. Although the Motion suggests that at least a few Defendants might be aware of this
case,3 Plaintiff’s statements in the Motion are insufficient. And even if they were sufficient, she
submits them as to some Defendants, but not others. Additionally, the rules do not provide for
substitute service in the manner in which Plaintiff seeks. For example, Colorado Rule of Civil
Procedure 4(f) allows for substitute service by personal delivery to a substituted person and
3 For example, by returning Plaintiff’s mailing. (See Doc. No. 25 at 2.)
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mailing to defendant, but does not contemplate substitute service by certified mail, only. Thus,
the Court cannot say that Plaintiff’s mailings are “reasonably calculated” to give Defendants
notice of the individual capacity claims against them. Moreover, there is no indication that
Plaintiff attempted other forms of service in the interim—nor did Plaintiff seek the leave for
substitute service before mailing, as would be most appropriate. See Colorado Rule of Civil
Procedure 4(f) (saying a plaintiff should “file a motion ... for an order for substituted service”
before attempting substituted service) She knew certified mail was insufficient given the Court’s
prior order, and she nevertheless seeks to rely on it now. There is no basis for permitting the
substitute service Plaintiff appears to seek here.
However, given Plaintiff’s pro se status, efforts to date, and apparent confusion over
proper service, there appears to be good cause to extend Plaintiff’s time to serve, one final time.4
Plaintiff shall have until June 2, 2025, to effect service on Defendants in their individual
capacities, precisely as the rules describe. See Fed. R. Civ. P. 4(i)(3) (describing the rules for
serving United States officers or employes sued in their individual capacity). If she cannot effect
service on them by then, the Court may recommend dismissal without further notice.
Additionally, further review of Plaintiff’s mailings suggests she has yet to perfect service
as to her official capacity claims. Specifically, while Fed. R. Civ. P. 4(i)(1)(ii) provides that
service upon the United States requires a certified mailing the “civil-process clerk at the United
States attorney’s office,” Plaintiff’s mailing to the U.S. Attorney’s Office for the District of
Colorado was addressed to Acting United States Attorney Matt Kirsch. (Doc. No. 16-3.) Thus,
4 The docket indicates Plaintiff obtained two subpoenas since the Court’s last order, ostensibly in
furtherance of her attempt to locate Defendants. (Doc. Nos. 23; 24.)
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Plaintiff must also perfect service of her official capacity claims by June 2, 2025, or risk
dismissal.
CONCLUSION
Based on the preceding, it is hereby
ORDERED that Plaintiff’s Motion for a Variance in Federal Rules of Civil Procedure
Rule 4 (Doc. No. 25) is DENIED. It is further
ORDERED that on or before June 2, 2025, Plaintiff shall effect service of all individual
capacity and official capacity claims. Failure to do so may result in a recommendation of
dismissal without further notice.
The Clerk of Court is further ORDERED to mail a copy of this Order to Plaintiff:
Mykhael Kuciapinski
5136 Community Center Drive
#69
USAF Academy, CO 80840
Dated this 21 st day of April 25.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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