Torres v. Polis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00142-SKC-KAS
FELIX MAURO TORRES,
Plaintiff,
v.
JARED POLIS, Governor,
PAX LEIA MOULTRIE, Judge,
DENVER DISTRICT COURT FAMILY DIVISION, and
VANESSA GUZMAN,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on the State Defendants’ Motion to Dismiss [#21]
(“State’s Motion”), filed by Defendants Jared Polis (“Polis”), Pax Leia Moultrie (“Moultrie”),
and Denver District Court Family Division (the “State Court”)1; and Defendant Vanessa
Guzman’s 	Motion 	to Dismiss 	[#23] 	(“Guzman’s Motion”).2 Plaintiff 	filed his 	First
Response [#30] in opposition to the State Defendants’ Motion [#21] and his First
Response [#32] in opposition to Guzman’s Motion [#23]. The State Defendants filed a
1 “Denver Juvenile Court” appears to be the correct name for the entity Plaintiff has sued, not
“Denver District Court Family Division.” See State Defs.’ Motion to Dismiss [#21] at 1 n.1 (citations
omitted).
2 Both Plaintiff and Defendant Guzman proceed as pro se litigants. The Court must liberally
construe pro se litigants’ filings. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so,
the Court should neither be a pro se litigant’s advocate nor “supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on a [litigant’s] behalf.” Whitney v.
New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991)).
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Reply [#33] in support of their Motion to Dismiss [#21], but Defendant Guzman did not file
a reply brief and the time to do so has elapsed. Then, even though briefing was closed,
Plaintiff filed a Second Response [#34] to Guzman’s Motion [#23], along with a Second
Response [#35] to the State Defendants’ Motion [#21]. Two days later, he filed a
Corrected Second Response [#36] to the State Defendants’ Motion [#21].
Finally, the State Defendants filed a Motion for Leave to File Sur-Sur-Reply [#37]
(the “Motion for Leave”) along with an attached proposed Sur-Sur-Reply [#37-1], arguing
that 	Plaintiff 	waited 	until 	his 	procedurally 	improper 	Second 	Response 	[#35] 	to
substantively address their Motion to Dismiss [#21].
The Motions [#21, #23, #37] have been referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See
Memoranda [#22, #28, #38]. The Court has reviewed the briefs, including Plaintiff’s
procedurally improper Second Responses [#34, #36] and Defendant’s Sur-Sur-Reply
[#37-1], the entire case file, and the applicable law. For the reasons stated below, the
Motion for Leave [#37] is GRANTED and the Court RECOMMENDS that the Motions
[#21, #23] be GRANTED.
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I. Background3
In June 2018, Plaintiff Felix Mauro Torres married Defendant Guzman. Am. Compl.
[#6] at 7. In December 2018, the couple separated, after which Plaintiff moved to
Albuquerque, New Mexico, and Defendant Guzman remained in Denver, Colorado. Id.
On August 11, 2019, Defendant Guzman gave birth to a son. Id. Plaintiff alleges that
during this time and in the months that followed, Defendant Guzman engaged in “many
divisive actions,” including “denying [Plaintiff] access during birth, complete failure to
communicate with [Plaintiff], unilaterally changing [the child’s] name and other actions[.]”
Id.
On December 31, 2019, a hearing was held by an unidentified court, “whereby
paternity and support were decided and [Plaintiff] began exercising his parental rights
through time with his son.” Id. However, Defendant Guzman allegedly “continued to deny
[Plaintiff] access and information on the whereabouts of [their son] and has not promoted
a healthy consistent custodial bond between” Plaintiff and their son. Id. On September 2,
2020, Defendant Guzman sent an email to Plaintiff stating that he would not be allowed
to see their son without a court order. Id. Plaintiff asserts that no court has found him
“either unfit or unqualified to parent his son,” and that there have been “no allegations nor
are there any incidences of abuse that would establish [Plaintiff] as abusive.” Id.
3 For the purposes of resolving the Motions [#21, #23], the Court accepts as true all well-pleaded,
as opposed to conclusory, allegations made in Plaintiff’s Amended Complaint [#6]. See Shero v.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). To the extent that Plaintiff asserts additional allegations or new claims in
his briefs, the Court notes that a plaintiff may not amend his complaint in motion briefing. See,
e.g., Kan. Motorcycle Works USA, LLC v. McCloud, 569 F. Supp. 3d 1112, 1127 (D. Kan. 2021)
(stating that “a party may not amend its complaint by way of arguments in a brief”); Wilson v.
Johnson, No. 19-cv-2279-CMA-NRN, 2020 WL 5815915, at *5 (D. Colo. Sept. 30, 2020) (stating
that it is “well established that Plaintiff may not amend his Complaint by adding factual allegations
in response to Defendants’ Motion to Dismiss”).
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On December 18, 2023, Defendant Moultrie, then a judge at the Defendant State
Court, held a hearing “on the matter of [Plaintiff’s] right to access and parent” his son. Id.
at 5. Plaintiff alleges that Defendants Moultrie and the State Court “refused to address”
his request, stating that his rights to access and parent his child “were subject to”
conditions including: (1) Plaintiff’s “compliance with a court recommendation for [Plaintiff]
to engage a Court appointed Guardian Ad Litem for [his] son,” which Plaintiff asserts
“raises the matter of compelled speech,” and (2) that Plaintiff “prove financial worthiness
by providing detailed information about [his] financial integrity.” Id. Plaintiff asserts that
“both of these conditions were subject to the outcome of another hearing on January 29,
2024,” but he provides no further factual allegations. Id. Plaintiff asserts that the actions
of Defendants Moultrie and State Court “implicate[ ] culpability in the chain of authority up
to and including the Governor, [Defendant] Polis, who is the chief administrative officer
who appointed Judge [Defendant] Moultrie.” Id.
Plaintiff’s sole cause of action against all Defendants is for violation of the
Fourteenth Amendment. See id. at 4-5, 7, 9-10. As relief, Plaintiff seeks damages and
injunctive relief. Id. at 9 (asking the Court “to immediately and without hesitation
recognize, support and fully enforce [Plaintiff’s] parental activities”); id. at 10 (identifying
monetary damages).
In their Motions to Dismiss [#21, #23], Defendants seek dismissal of this claim
against them pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Defendant Guzman
argues that she is not a state actor for purposes of 42 U.S.C. § 1983 and that the Rooker-
Feldman or Younger abstention doctrine bar Plaintiff’s claims. Guzman Motion [#23] at 1.
The State Defendants argue that the Court lacks subject matter jurisdiction due to
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Eleventh Amendment immunity, the domestic relations exception, and the Younger
abstention or Rooker-Feldman doctrine. State Defs.’ Motion [#21] at 6-11, 10 n.3. They
also argue that Plaintiff fails to state a claim. Id. at 11-15.4
II. Legal Standards
A. 	Fed. R. Civ. P. 12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). Because federal courts are
tribunals of limited jurisdiction, a court must establish a statutory basis to exercise
jurisdiction. Fed. R. Civ. P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
A court may only exercise jurisdiction “in the presence rather than the absence of statutory
authority.” Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994) (quoting Wyeth
Lab’ys v. U.S. Dist. Ct., 851 F.2d 321, 324 (10th Cir. 1988)). “The party invoking federal
jurisdiction has the burden to establish that it is proper, and there is a presumption against
4 Plaintiff also argues that the Defendants failed to timely answer or respond to his Amended
Complaint [#6], and he asks the Court to enter default judgment against them. See First Response
to State Defs.’ Motion to Dismiss [#30] at 1; First Response to Guzman Motion to Dismiss [#32]
at 1. The Court need not address this argument for two reasons. First, Plaintiff improperly includes
a 	motion 	for 	default 	judgment 	in 	his 	briefs 	in 	response 	to 	motions 	to 	dismiss. 	See
D.C.COLO.LCivR 7.1(d) (“A motion shall not be included in a response or reply to the original
motion. A motion shall be filed as a separate document.”) Second, as discussed in this
Recommendation, the Court lacks subject matter jurisdiction, which moots the question of default.
See, e.g., Atkinson-Bird v. Utah, Div. of Child & Fam. Servs., 92 F. App’x 645, 647-48 (10th Cir.
2004) (declining to address one defendant’s failure to respond to the plaintiff’s complaint because,
“[g]iven the district court’s holding that it lacked subject matter jurisdiction under the Rooker-
Feldman doctrine, which we have upheld, any question regarding plaintiff’s entitlement to a default
judgment is moot.”) (citing Lundahl v. Zimmer, 296 F.3d 936, 938-39 (10th Cir. 2002)).
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its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014) (internal quotation marks and citation omitted).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen
Enterprizes, II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially
attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2)
go beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs.,
Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). “When resolving a facial attack on
the allegations of subject matter jurisdiction, a court must accept the allegations in the
complaint as true.” Graff, 65 F.4th at 507 (citing Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995)). “When the moving party attacks the factual basis for subject matter
jurisdiction, on the other hand, a court ‘may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed jurisdictional
facts.’” Id. (quoting SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272,
1275 (10th Cir. 1997)). “Reference to evidence outside the pleadings does not convert
the motion to dismiss into a motion for summary judgment[.]” SK Fin. SA, 126 F.3d at
1275. “In such instances, a court has discretion to consider affidavits and other
documents to resolve the jurisdictional question.” Graff, 65 F.4th at 507 (citing Holt, 46
F.3d at 1003).
B. 	The Rooker-Feldman Doctrine
“[F]ederal review of state court judgments can be obtained only in the United
States Supreme Court.’” Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1169
(10th Cir. 1998) (citing D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker
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v. Fid. Tr. Co., 263 U.S. 413, 416 (1923)); see also 28 U.S.C. § 1257(a) (“Final judgments
or decrees rendered by the highest court of a State in which a decision could be had, may
be reviewed by the Supreme Court[.]”). Stated simply, the Rooker-Feldman doctrine bars
lower federal courts from hearing cases “brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Thus, federal district
courts “do not have jurisdiction ‘over challenges to state-court decisions in particular
cases arising out of judicial proceedings even if those challenges allege that the state
court's action was unconstitutional.’” Van Sickle v. Holloway, 791 F.2d 1431, 1436 (10th
Cir. 1986) (quoting Feldman, 460 U.S. at 486).
The Rooker-Feldman doctrine “also bars any ‘action in federal court that alleges
an injury “inextricably intertwined” with a state court decision, such that success in the
federal court would require overturning the state decision[.]’” Wideman v. Colorado, 242
F. App'x 611, 613-14 (10th Cir. 2007) (quoting Epps v. Creditnet, Inc., 320 F.3d 756, 758-
59 (7th Cir. 2003)). “Where a plaintiff seeks a remedy that would ‘disrupt or undo’ a state
court judgment, the federal claim is inextricably intertwined with the state court judgment.”
Crutchfield v. Countrywide Home Loans, 389 F.3d 1144, 1148 (10th Cir. 2004) (citation
omitted), overruled in part on other grounds as recognized in Jensen v. Utah Ct. of
Appeals, 525 F. App'x 678, 680 (10th Cir. 2013). Such claims are subject to dismissal for
lack of subject matter jurisdiction under the Rooker-Feldman doctrine. See Wideman, 242
F. App'x at 614.
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III. Analysis
Both Defendant Guzman and the State Defendants raise the Rooker-Feldman and
Younger abstention doctrines, which apply depending on whether the state court
proceedings are complete or not.5 See Guzman Motion [#23] at 1; State Defs.’ Motion
[#21] at 6-11, 10 n.3. Plaintiff argues that there is no ongoing case and, therefore, “the
Younger argument is irrelevant[.]” Corr. Second Response to State Defs.’ Motion [#36] at
4. 	(asserting that Younger is irrelevant because “[t]he foundation of the defendants’
arguments is that there was an ongoing case and, in fact, there was not”).6 The Court will
accept Plaintiff’s representation that no ongoing state court proceedings exist. Even so,
the Court must consider the Rooker-Feldman doctrine, which is jurisdictional, before it
can consider the merits or plausibility of Plaintiff’s claims under Rule 12(b)(6).
A. 	Subject Matter Jurisdiction
The Tenth Circuit routinely applies the Rooker-Feldman doctrine to bar suits that
challenge state court child custody determinations or state court procedures. See, e.g.,
Shophar v. United States, 838 F. App’x 328, 332-33 (10th Cir. 2020) (affirming dismissal
of parents’ habeas claim challenging state court child custody order under Rooker-
Feldman doctrine because there was “no reasonable way to read the [plaintiffs’] complaint
5 While the Rooker-Feldman doctrine bars federal review of final state court judgments, the
Younger abstention doctrine “dictates that federal courts not interfere with [ongoing] state court
proceedings by granting equitable relief—such as injunctions of important state proceedings or
declaratory judgments regarding constitutional issues in those proceedings—when such relief
could adequately be sought before the state court.” Amanatullah v. Colo. Bd. of Med. Exam’rs,
187 F.3d 1160, 1163 (10th Cir. 1999); see also Younger v. Harris, 401 U.S. 37 (1971).
6 This distinction would not change the outcome, and if state court proceedings are ongoing, the
Court would still recommend declining jurisdiction under the Younger abstention doctrine. See,
e.g., Alfaro v. County of Arapahoe, 766 F. App’x 657, 660 (10th Cir. 2019) (affirming district court’s
alternative findings that Rooker-Feldman and Younger abstention barred federal review of state-
court divorce and custody proceedings); Wideman v. Colorado, 242 F. App’x 611, 614 (10th Cir.
2007) (making similar alternative findings).
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. . . as anything but an attempt to obtain custody of the children”); Alfaro v. County of
Arapahoe, 766 F. App’x 657, 659-61 (10th Cir. 2019) (affirming dismissal of mother’s
constitutional claims challenging state-court divorce and child custody proceedings under
Rooker-Feldman doctrine because she “complained of injuries caused by state-court
judgments”); Atkinson-Bird v. Utah, Div. of Child & Fam. Servs., 92 F. App’x 645, 647
(10th Cir. 2004) (affirming dismissal of mother’s civil rights action challenging state court
child custody decisions under the Rooker-Feldman doctrine where adjudication of her
claim would “involve the court in relitigating the various child custody issues and,
potentially, second-guessing state court decisions on these matters”).
Here, Plaintiff claims that Defendants violated his Fourteenth Amendment right to
familial association when Defendants Moultrie and State Court imposed two conditions
on his “right to access and parent [his] 4.5 years old son[.]” Am. Compl. [#6] at 5. These
state court-imposed conditions and findings are at the heart of his allegations. See, e.g.,
id. at 7 (asserting that Defendant Guzman “relies on the support of the State Court to
sanction in writing [Plaintiff’s] right to parent [his son]” and that “these conditions were
retained after [Plaintiff] asserted his 14 th Amendment rights in open court”). He accuses
the state court of “refusing to acknowledge [his] rights and having no written findings that
would disqualify his parental rights, act[ing] in violation with Federal Law.” Id. at 7-8.
Additionally, Plaintiff seeks monetary damages based on the “loss of contact
between a loving father and his son” that allegedly resulted from the December 18, 2023
hearing, as well as injunctive relief to restore his “rights to immediately and without
hesitation recognize, support and fully enforce [his] parental activities.” Id. at 9, 10. He
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attempts to argue that this “is not a domestic dispute claim but a [42 U.S.C. §] 1983 civil
rights claim.” Corr. Second Response to State Defs.’ Motion [#36] at 8.
Ultimately, no matter how Plaintiff tries to frame his claim, the alleged Fourteenth
Amendment 	violations 	directly 	result 	from 	and 	are 	inextricably 	intertwined 	with
Defendants Moultrie’s and State Court’s imposition of conditions on Plaintiff’s access to
his son. The Court cannot reasonably read Plaintiff’s Amended Complaint [#6] in any
other way: Plaintiff seeks custody of his child. Cf. Shophar, 838 F. App’x at 332-33. The
fact that Plaintiff pursues his claim through 42 U.S.C. § 1983 does not save it. Cf.
Atkinson-Bird, 92 F. App’x at 647 (“It is well-settled, however, that an unsuccessful state
litigant cannot challenge an adverse state judgment and circumvent the rule of Rooker-
Feldman simply ‘by bringing a constitutional claim under [the civil rights statutes].’”)
(quoting Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991)) (modification in original).
The relief sought by Plaintiff—whether money damages based on a denial of
custody ore deprivation of parental rights or injunctive relief for Defendants to “recognize”
and “support” his parental rights—would require this Court to undermine or invalidate
Defendants Moultrie’s and the State Court’s judgment imposing conditions on Plaintiff’s
parental rights. Am. Compl. [#6] at 9; see also Pandey v. Russell, 445 F. App’x 56, 59
(10th Cir. 2011) (affirming dismissal of monetary damages claims under Rooker-Feldman
doctrine 	because, “for [the plaintiff] to prevail on those claims, the district court in this
case would have to review, and ultimately reject, the orders issued by the defendants in
the state divorce proceedings”) (citing Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir.
2007)). The Court concludes that Plaintiff’s constitutional claims “are little more than thinly
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disguised efforts to overturn, or at least call into question the validity of, the rulings entered
against him by the Colorado state court[].” Wideman, 242 F. App’x at 624.
In sum, the Court finds that Plaintiff’s Fourteenth Amendment claim is barred by
the Rooker-Feldman doctrine. Therefore, the Court lacks subject matter jurisdiction over
Plaintiff’s claim. Accordingly, the Court recommends that Plaintiff’s claims be dismissed
without prejudice. See, e.g., Wideman, 242 F. App’x at 615 (“Because dismissals based
upon the Rooker-Feldman and Younger abstention doctrines are jurisdictional, they
should be entered without prejudice.”) (citing Brereton v. Bountiful City Corp., 434 F.3d
1213, 1214 (10th Cir. 2006)).
B. 	State Defendants’ Motion for Leave [#37]
Separately, the State Defendants have moved for leave to file a sur-sur-reply,
arguing that Plaintiff did not substantively respond to their Motion to Dismiss [#21] until
his Corrected Second Response [#36], which he filed after briefing had closed. See
Motion for Leave [#37], ¶ 6. They ask the Court to exercise its discretion and accept their
Sur-Sur-Reply [#37-1]. Id., ¶ 8.
The decision whether to permit a surreply (or sur-sur-reply) is within a court’s
discretion. See Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (citing Beaird
v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998)). Generally, a party “should
be given an opportunity to respond to new material raised for the first time” in a reply (or,
here, an improperly filed surreply). Id. New material includes new evidence and new legal
arguments. Id.
Here, the Court agrees that Plaintiff waited until his Corrected Second Response
[#36] before raising any substantive arguments in opposition to the State Defendants’
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Motion [#21]. See generally First Response to State Defs.’ Motion [#30] (arguing that
Defendants are in default and generally that federal courts should validate rights
enshrined in the Constitution); but see generally Corr. Second Response to State Defs.’
Motion [#36] (arguing that Younger abstention does not apply, disputing Eleventh
Amendment immunity arguments, challenging the State Defendants’ cited authority, and
raising, for the first time, First Amendment and Fourth Amendment “considerations”). The
State Defendants should be given an opportunity to respond to this material. Cf. Green,
420 F.3d at 1196. Therefore, in the Court’s discretion, the State Defendants’ Motion for
Leave [#37] is granted and their Sur-Sur-Reply [#37-1] is accepted as filed.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion for Leave [#37] is GRANTED and the
State Defendants’ Sur-Sur-Reply [#37-1] is ACCEPTED AS FILED.
IT IS FURTHER RECOMMENDED that the State Defendants’ and Defendant
Guzman’s Motions to Dismiss [#21, #23] be GRANTED and that Plaintiff’s claims be
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
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recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: February 26, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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