UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ FREDERICK L. ALLMAN, Plaintiff - Appellant,

v. WILLIAM P. BARR, USAG, Department of Justice; CLIFFORD J. WHITE, III, Director, Trustee Program, United States; BILLY J. WILLIAMS, USAO, Department of Justice; ARNOT STEPHEN, USTO, Trustee Program, United States; S. AMANDA MARSHALL, Former USA, District of Oregon; MICHELLE H. KERIN, Assistant USA, District of Oregon; JOSEPH LAMONICA, Investigatory for USA, District of Oregon; M. VIVIENNE POPPERL, Former Attorney of the U.S. Trustee UST, District of Oregon; PETER C. MCKITTRICK, Former Bankruptcy Trustee UST, District of Oregon; KENNETH S. EILER, Bankruptcy Trustee UST, District of Oregon; UNKNOWN PROFESSIONAL LIABILITY FUND AND.OR PROFESSIONAL SURETY, Defendants - Appellees. No. 19-1460 (D.C. No. 1:19-CV -02300-LTB-GPG) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

* After examining the brief and appellate record, this pane l has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral FILED United States Court of Appeals Tenth Circuit 

### September 11, 2020 Christopher M. Wolpert Clerk of Court2 ________________ _________________ Before PHILLIPS , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Frederick L. Allman, a Colorado pris oner proceeding pro se , appeals from the district court’s dismissal of his civil rights action for im proper venue. The district court dismissed the action on initial screeni ng; the defendants were not served and do not appear on appeal. Exercising jurisdicti on under 28 U.S.C. § 1291, we affirm. Because Mr. Allman proceeds pro se, we liberally construe his filings, but we “cannot take on the responsibility of serv ing as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). In considering whethe r Mr. Allman satisfied the statutory venue requirements, we review the district court’s decision de novo. See Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc. , 618 F.3d 1153, 1164-65 (10th Cir. 2010); Pierce v. Shorty Sma ll’s of Branson Inc. , 137 F.3d 1190, 1191 (10th Cir. 1998). The district court analyzed venue under 28 U.S.C. § 1391(b)(2). Under § 1391(b)(2), “[a] civil action may be brought in . . . a j udicial district in which a substantial part of the even ts or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” The complaint and Mr. Allman’s response to an order to show cause revealed that the defendants were located in the District of Columbia and Oregon, and that the estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 complaint challenged actions taken in the c ourse of a criminal case and a bankruptcy case in the District of Oregon. The only connections to Co lorado appeared to be that Mr. Allman was arrested and detained ther e in connection with the Oregon case, that he was incarcerated there (after being convi cted in a different matter) when he filed the suit, and that he allegedly continued to suffer constitutional violations there from the defendants’ conduct. Th e magistrate judge conclude d that Mr. Allman had not shown that “a substantial part of the even ts or omissions givi ng rise to the claim occurred” in Colorado, as § 1391(b)(2) re quires. He recommended dismissing the action for improper venue. After Mr. Allm an failed to object, the district court accepted the report and recommendation and dismissed the action without prejudice for improper venue. It subs equently denied Mr. Allman’s motions to reconsider. Mr. Allman complains that the district court did not serve him with a copy of the magistrate judge’s re port and recommendation, denyi ng him due process because he had no opportunity to file objections. The district cour t’s docket reflects that the court served the order on Mr. Allman by mail. Accordingly, we reject Mr. Allman’s allegations that he was denied due process. But we accept his assertion that he did not receive the report and recommendation; it is entirely possible both that the district court mailed a copy of the order, but that Mr. Allman did not receive it. Therefore, we do not apply th is court’s “firm waiver ru le,” whereby litigants waive their arguments when they fail to object to a re port and recommendation. See Klein v. Harper , 777 F.3d 1144, 1147 (10t h Cir. 2015) (applying interests of justice4 exception to the firm waiver rule where a pro se party averred he had not received a copy of a report and recommenda tion and had otherwise been an attentive litigant). Renewing the venue arguments he made in the district court, Mr. Allman states that he was arrested and detained in Colorado, without ac cess to counsel, in connection with the District of Oregon crimin al case. He currently is incarcerated in Colorado, and he alleges that he continue s to suffer from constitutional violations there. He further asserts th at the District of Oregon suffe rs from conflicts of interest given the nature of the claims he seeks to pursue, and “[t]he balance of hardships overwhelming[ly] favors [him] as litigating the civil action in any other venue is virtually impossible due to [his] indigent a nd incarcerated status,” Aplt. Br. at 12. As the district court determined, the criminal and bankruptcy matters underlying this action proceeded in the Di strict of Oregon, not the District of Colorado. All of the defendants are located either in Oregon or in the District of Columbia, and the alleged past and conti nuing constitutional viol ations appear to have arisen out of activities th ey undertook in those district s. In short, the district court did not err in concluding that Mr. Allman failed to s how that “a substantial part of the events or omissions giving rise to the claim occurre d” in Colorado. § 1391(b)(2). Neither Mr. Allman’s status as an incarcerated and i ndigent resident of Colorado nor his strong prefer ence to litigate in Colorado rather than Oregon make venue proper in the District of Colorado under § 1391(b)(2). Mr. Allman states that Elrod v. Burns , 427 U.S. 347 (1976), “calls for trial in District Plaintiff resides in.” Aplt. Br. at 15. Contrary to his reading, however, Elrod5 did not address venue and did not establish a ri ght to litigate in th e district in which a plaintiff resides. See Elrod , 427 U.S. at 349 (identifying the question before the Court as “whether public employees who allege that they were discharged or threatened with discharge so lely because of their part isan political affiliation or nonaffiliation state a claim for deprivation of constitu tional rights secured by the First and Fourteenth Amendments”). Mr. Allman also cites 28 U.S.C. § 1391(e), which establishes venue in th e district in which a plain tiff resides in certain suits against federal officers and employees. But § 1391(e) is inapplicable here for two reasons. First, Mr. Allman seeks a damage award, but the Supreme Court has held that § 1391(e) does not a pply to damages suits. See Stafford v. Briggs , 444 U.S. 527, 540, 542 (1980) (limiting § 1391(e) to su its in the nature of mandamus against federal officers and employees in their offici al capacities). Second, Mr. Allman also requests the return of real property, but § 1391(e)(1)(C) establishes venue in the district in which a plaintiff resides only “if no real property is involved in the action.” Mr. Allman’s motion to proceed without prepayment of costs and fees is granted. He is reminded of his obligati on to continue making partial payments until the full amount has been paid. See 28 U.S.C. § 1915(b)(1)-(2). The district court’s judgment is affirmed.

Entered for the Court

Joel M. Carson III Circuit Judge