Roe v. Jenkins

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ARTHUR ROE

Plaintiff,

v. Civ. Action No. 1:20-CV-140

(Judge Kleeh)

CAREN JENKINS,

Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

I. Introduction

Pending before the Court is a Report and Recommendation

(“R&R”) entered by United States Magistrate Judge Michael J. Aloi

(the “Magistrate Judge”) on pro se Plaintiff Arthur Roe’s Petition

for Writ of Habeas Corpus and Complaint for Injunctive and

Declaratory Relief and Damages (“Petition”) filed on July 17, 2020.

[ECF No. 1]. In the Motion, Plaintiff asks this Court to order (1)

declaratory judgment that Defendant Caren Jenkins is not a legal

parent entitled to custody of the children at issue and that

Plaintiff’s due process rights have been violated under 42 U.S.C.

§ 1983, (2) a preliminary and permanent injunction prohibiting

Defendant from having custody of the children at issue, (3) a writ

of habeas corpus or a temporary restraining order requiring

Defendant to surrender the children, (4) Defendant to pay fees and

costs associated with this action, (5) actual and compensatory

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

damages including but not limited to pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, and

punitive damages, and (6) other relief as justice requires. [ECF

No. 1 at 9]. Plaintiff further argues that jurisdiction is proper

under 42 U.S.C. § 1391 “because [Defendant] resides in Gilmer

County and is unlawfully holding Petitioner’s children in Gilmer

County.” [ECF No. 1 at ¶ 2].

Plaintiff filed a Motion to Proceed under Pseudonym and Motion

to Seal Reference List and Exhibits [ECF No. 2], Motion for

Temporary Restraining Order, Preliminary Injunction, and Writ of

Habeas Corpus [ECF No. 3], Motion to File Electronically [ECF No.

5], and Emergency Motion for Ex-Parte Hearing on Temporary

Restraining Order and Writ of Habeas Corpus [ECF No. 12]. After

the Magistrate Judge filed the R&R, Plaintiff filed objections

[ECF No. 14], Motion to Expedite Determination of Plaintiff’s

Objections [ECF No. 15], and Motion to Extend Time Limit for

Service [ECF No. 16]. It appears that Defendant has never been

served with a Summons or Complaint from this case, and has not

filed any document or response to any motion. For the reasons

discussed herein, the Court adopts the R&R.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

II. Legal Standard

A. Report and Recommendation Standard of Review

When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an objection has been timely

made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,

without explanation, any of the magistrate judge’s

recommendations” to which there are no objections. Dellarcirprete

v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing

Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will

uphold portions of a recommendation to which no objection has been

made unless they are clearly erroneous. See Diamond v. Colonial

Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). “When

a party does make objections, but these objections are so general

or conclusory that they fail to direct the district court to any

specific error by the magistrate judge, de novo review is

unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730

(S.D.W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th

Cir. 1982) (emphasis added)).

Timely, specific objections are necessary to focus the

court’s attention on disputed issues. Thomas v. Arn, 474 U.S.

140, 148 (1985). General objections to a magistrate judge’s report

and recommendation are tantamount to a failure to object because

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

they do not direct the court’s attention to any specific portions

of the report. Howard v. Secretary of Health & Human Servs. 932

F.2d 505, 529 (6th Cir. 1991); Orpiano v. Johnson, 687 F.2d 44, 47

(4th Cir. 1982) (de novo review is not required where objections

are general and conclusory); United States v. Midgette, 478 F.3d

616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a

magistrate judge’s report, a party must object to the finding or

recommendation on that issue with sufficient specificity as

reasonably to alert the district court of the true ground for the

objection.”). “When only a general objection is made to a portion

of a magistrate judge’s report-recommendation, the Court subjects

that portion of the report-recommendation to only a clear error

review.” Williams v. New York State Div. of Parole, No. 9:10-CV-

1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012).

A party waives any objection to an R&R that lacks adequate

specificity. See Mario v. P & C Food Markets, Inc., 313 F.3d 758,

766 (2d Cir. 2002) (finding that a party’s objections to the

magistrate judge’s R&R were not specific enough to preserve the

claim for review). Bare statements “devoid of any reference to

specific findings or recommendations . . . and unsupported by legal

authority, [are] not sufficient.” Mario, 313 F.3d at 766. Pursuant

to the Federal Rules of Civil Procedure and this Court’s Local

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

Rules, “referring the court to previously filed papers or arguments

does not constitute an adequate objection.” Id.; see also Fed. R.

Civ. P. 72(b); LR PL P 12.

The R&R informed the parties that they had fourteen (14) days

from the date of service of the R&R to file “specific written

objections, identifying the portions of the Report and

Recommendation to which objection is made, and the basis of such

objection.” It further warned them that the “[f]ailure to file

written objections . . . shall constitute a waiver of de novo

review by the District Court and a waiver of appellate review by

the Circuit Court of Appeals.” The docket reflects that Plaintiff

filed timely objections to the R&R. [ECF No. 14].

B. Jurisdiction

The remaining legal standard to be discussed is that of

subject matter jurisdiction. As the Magistrate Judge stated, a

question of federal court’s jurisdiction of child custody matters

is not an extensive inquiry. In fact, “[the Fourth Circuit] has

consistently acknowledged and upheld this lack of federal court

jurisdiction in the area of domestic relations. Doe v. Doe, 660

F.2d 101, 105 (4th Cir. 1981); see also Johnson v. Byrd, No.

1:16cv1052, 2016 WL 6839410, *1, *13 (M.D.N.C. 2016) (noting that

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

“[t]he case may not proceed in this court for a number of reasons.

First, it involves matters of family law. Such issues have

traditionally been reserved to the state or municipal court systems

with their expertise and professional support staff. Under the

domestic relations exception to

federal jurisdiction, federal courts generally abstain from

review of such cases”) (internal citation omitted).

Reason and precedent both dictate that in this, a purely

custodial case between private parties, [] the federal

courts not intervene. The policy that the federal courts

not entertain the case is so strong that any exercise of

jurisdiction by the district court would amount to an

exercise of power it does not possess. Prohibition lies

for the improper exercise of jurisdiction which may

otherwise exist.

Doe, 660 F.2d at 106.

Further, “federal habeas corpus is not an available remedy

where the object of the suit is to determine child custody.” Doe

v. Doe, 660 F.2d 101, 104-05 (4th Cir. 1981). When the Court is

without subject matter jurisdiction, “the only function remaining

to the court is that of announcing the fact and dismissing the

cause.” Steel Co. v. Citizens for a Better Environment, 523 U.S.

83, 94 (1998) (internal citations omitted).

III. Discussion

A court’s determination of whether the Plaintiff or Defendant

is entitled to child custody, care, and control is a custodial

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

matter between private parties, a matter in which “the federal

courts [do] not intervene” despite Plaintiff’s argument to the

contrary. Doe v. Doe, 660 F.2d 101, 106 (4th Cir. 1981). Therefore,

the undertaking of the determination by a federal court will be

brief. Id. Plaintiff requests a variety of relief, all of which is

brought under the guise of family law matters, which is explicitly

within the jurisdiction of state courts.

A family court of West Virginia is the entity authorized to

“establish, enforce or modify a child custody determination.” W.

Va. Code § 48-20-102(f). Indeed, Federal district courts have

limited subject matter jurisdiction. Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). They possess

only the jurisdiction authorized by the United States Constitution

and federal statute. Bowles v. Russell, 551 U.S. 205, 212 (2007)

(“Within constitutional bounds, Congress decides what cases the

federal courts have jurisdiction to consider.”). Federal district

courts decide federal question cases-such as the instant case-

which are “civil actions that arise under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331.

Plaintiff lodges a number of allegations against Defendant,

including, but not limited to, that the Defendant (1) is a

“gestational surrogate who bears no genetic connection to

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

[Plaintiff’s] children,” (2) is abusive and neglectful of the

children, (3) falsely listed herself on the birth certificates as

a biological parent, (4) perjured herself in state court during

proceedings regarding child custody matters of the children at

issue, (5) after admitting she was not a biological parent, was

awarded custody of the children pursuant to W. Va. Code § 16-5-

10(e), and (6) was affirmed custody of the children by the Supreme

Court of Appeals of West Virginia. [ECF No. 1].

A. Objections

Plaintiff filed a ten (10) page document with no less than

nineteen (19) purported objections. [ECF No. 14]. Within the

document, Plaintiff objects for a myriad of reasons, and most

objections merely repeat and clarify the allegations of his

Complaint [ECF No. 1-1] as well as the arguments in his Motions

[ECF Nos. 2, 3, 5, 12, 15, 16]. Due to Plaintiff’s failure to

object to the finding or recommendation with sufficient

specificity on the Magistrate Judge’s recommendation that this

Court dismiss the claims because the Court lacks subject matter

jurisdiction, only one (1) objection warrants a de novo review by

this Court.

1. Objection in Paragraph 8 [ECF No. 14 at ¶ 8]

In the objection that warrants a de novo review, Plaintiff

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

objects to the Magistrate Court’s finding that this Court lacks

subject matter jurisdiction to hear Plaintiff’s case.

Specifically, Plaintiff states that the “Court has jurisdiction

under 42 U.S.C. § 1983 because Plaintiff’s rights are being

deprived under color of WV Code § 16-5-10(e); under 28 U.S.C. §

1331 because the action arises under the Constitution; and, under

28 U.S.C. § 1332 because the matter in controversy exceeds $75,001

and is between citizens of different states.” [ECF No. 14 at ¶ 8].

42 U.S.C. § 1983, 28 U.S.C. §§ 1331 and 1332 are not operative

here. 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity,

or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act

or omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the

District of Columbia.

28 U.S.C. §§ 1331 and 1332 provide jurisdiction to district

courts when presented with a federal question or civil actions in

which the matter exceeds the sum of $75,000.00 and is between

citizens of different states. Here, Plaintiff brings neither a §

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

1983 Bivens action, nor a federal question or diversity suit under

§§ 1331 and 1332. Despite Plaintiff’s argument that this matter is

a civil rights one, it is a child custody dispute that must be,

and has been, resolved in state court.

It appears that Plaintiff’s state action of the instant child

custody matter warranted a memorandum decision by the Supreme Court

of Appeals of West Virginia. In S.U. v. C.J., the Court found that

the Family Court of Mason County had jurisdiction to resolve the

underlying child custody matters and affirmed the decision in favor

of the mother. S.U. v. C.J., No. 18-0566, 2019 WL 5692550 (W. Va.

Nov. 4, 2019). The Court discussed testimony of the parties and

indicated that the father’s testimony of the events, relationship,

and purported custody agreement as to surrogacy was not credible,

and the agreement was not enforceable. Id. The Court also made

findings of physical abuse on behalf of the father toward the

mother and in the children’s presence. Id. The parties having

received a full review on the merits in the proper court, this

Court has no jurisdiction to provide any decision or further

analysis on the issues presented. Therefore, as stated by the

Magistrate Judge, res judicata applies here, and bars any further

action from this Court. Based upon the foregoing, this objection

is overruled.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

2. Remaining Objections

Plaintiff’s remaining objections fail to warrant a de novo

review. Plaintiff attempts to clarify this issue raised in the

complaint and motions. The Court finds that Plaintiff’s objections

are conclusory, restate and clarify the allegations of the

complaint and motions filed thereafter, and are not specific as to

the findings and recommendation of the Magistrate Judge with

respect to the necessary standard for the determination of a

federal court’s lack of subject matter jurisdiction of this child

custody matter. Therefore, the remaining objections are likewise

overruled.

IV. Conclusion

For the reasons discussed herein, the Report and

Recommendation [ECF No. 13] is ADOPTED in its entirety.

Plaintiff’s objections [ECF No. 14] are OVERRULED, and Plaintiff’s

Petition for Writ of Habeas Corpus and Complaint for Injunctive

and Declaratory Relief and Damages [ECF No. 1] is DENIED with

prejudice. The following motions are DENIED AS MOOT: Plaintiff’s

Motion For Temporary Restraining Order, Preliminary Injunction,

and Writ Of Habeas Corpus [ECF No. 3], Plaintiff’s Emergency Motion

for Ex-Parte Hearing on Temporary Restraining Order and Writ of

Habeaus Corpus [ECF No. 12], Plaintiff’s Motion to File

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 13] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 14]

Electronically [ECF No. 5], Plaintiff’s Motion to Expedite

Determination of Plaintiff’s Objections to Report and

Recommendation, Temporary Restraining Order, and Writ of Habeas

Corpus [ECF No. 15], and Plaintiff’s Motion to Extend Time Limit

for Service [ECF No. 16]. Plaintiff’s Motion and Memorandum to

Proceed Under Pseudonym and Motion to Seal Reference List and

Exhibits [ECF No. 2] is GRANTED in part insofar as it seeks to

seal the Reference List and Exhibits filed by Plaintiff to the

extent they identify the minor children at issue in this matter

and docket entry [2] shall remain sealed. Therefore, Plaintiff’s

claims are DISMISSED.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all

pro se parties via certified mail, return receipt requested, and

to counsel of record via email.

DATED: March 17, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE