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 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). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines 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 Court
2 

_________________________________ 

Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges. 

_________________________________ 

 Frederick L. Allman, a Colorado prisoner proceeding pro se, appeals from the 

district court’s dismissal of his civil rights action for improper venue. The district 

court dismissed the action on initial screening; the defendants were not served and do 

not appear on appeal. Exercising jurisdiction 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 serving 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 whether 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 Small’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 judicial district in which a 

substantial part of the events 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 cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
3 

complaint challenged actions taken in the course of a criminal case and a bankruptcy 

case in the District of Oregon. The only connections to Colorado appeared to be that 

Mr. Allman was arrested and detained there in connection with the Oregon case, that 

he was incarcerated there (after being convicted in a different matter) when he filed 

the suit, and that he allegedly continued to suffer constitutional violations there from 

the defendants’ conduct. The magistrate judge concluded that Mr. Allman had not 

shown that “a substantial part of the events or omissions giving rise to the claim 

occurred” in Colorado, as § 1391(b)(2) requires. He recommended dismissing the 

action for improper venue. After Mr. Allman failed to object, the district court 

accepted the report and recommendation and dismissed the action without prejudice 

for improper venue. It subsequently 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 report and recommendation, denying him due process because 

he had no opportunity to file objections. The district court’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 this court’s “firm waiver rule,” whereby litigants waive 

their arguments when they fail to object to a report and recommendation. See Klein 

v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015) (applying interests of justice 
4 

exception to the firm waiver rule where a pro se party averred he had not received a 

copy of a report and recommendation 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 access to counsel, in 

connection with the District of Oregon criminal case. He currently is incarcerated in 

Colorado, and he alleges that he continues to suffer from constitutional violations 

there. He further asserts that the District of Oregon suffers 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 and incarcerated status,” Aplt. Br. at 12. 

 As the district court determined, the criminal and bankruptcy matters 

underlying this action proceeded in the District 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 continuing constitutional violations appear to 

have arisen out of activities they undertook in those districts. In short, the district 

court did not err in concluding that Mr. Allman failed to show that “a substantial part 

of the events or omissions giving rise to the claim occurred” in Colorado. 

§ 1391(b)(2). Neither Mr. Allman’s status as an incarcerated and indigent resident of 

Colorado nor his strong preference 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, Elrod
5 

did not address venue and did not establish a right to litigate in the 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 solely because of their partisan political affiliation or 

nonaffiliation state a claim for deprivation of constitutional rights secured by the 

First and Fourteenth Amendments”). Mr. Allman also cites 28 U.S.C. § 1391(e), 

which establishes venue in the district in which a plaintiff 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 apply to damages suits. See Stafford v. Briggs, 444 U.S. 527, 

540, 542 (1980) (limiting § 1391(e) to suits in the nature of mandamus against 

federal officers and employees in their official 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 obligation 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