# Roe v. Jenkins

> District Court, N.D. West Virginia · March 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10725891

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** March 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10725891

## How later opinions describe it (automated extraction)

- finding that a party’s objections to the magistrate judge’s R&R were not specific enough to preserve the claim for review

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725891. Public record. Not legal advice.