Everett v. Barnes et al

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:24-cv-00936-CNS-KAS Document 72 _ filed 03/20/25 USDC Colorado
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney

Civil Action No. 24-cv-00936-CNS-KAS
ANDREW DEREK EVERETT,

Plaintiff,
V.

MICHELLE BARNES,

NATALIE VIMONT,

TAMARA KRIEGER,

ELIZABETH (BETH) BARR,

SHANTELL R. RODRIGUEZ,

JUDGE PHILIP J. MCNULTY,

CLERK OF COURT DIANA L. COFFEE, and
RUSSEL MURRAY III PC,

Defendants.

ORDER

Plaintiff Andrew Derek Everett objects to United States Magistrate Judge Kathryn
A. Starnella’s Recommendation to dismiss Plaintiff's claims without prejudice for lack of
subject matter jurisdiction. ECF No. 64 (Recommendation); ECF No. 66 (Objection).’ The
Court has reviewed Plaintiffs objections, and upon de novo review, finds that they lack
merit. Accordingly, the Court overrules his objections and affirms Magistrate Judge
Starnella’s Recommendation as an order of this Court. Plaintiffs case is dismissed

without prejudice.

' Defendants responded to Plaintiff's objection. See ECF No. 69 (Jefferson County Defendants), ECF No.
70 (State Defendants), and ECF No. 71 (Defendant Murray).

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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I. 	SUMMARY FOR PRO SE PLAINTIFF
Magistrate Judge Starnella recommends that this Court dismiss your claims for
lack of subject matter jurisdiction under the Younger abstention doctrine and the domestic
relations exception. You filed an objection to that Recommendation, but you did not
present any authority or legal arguments demonstrating that Magistrate Judge Starnella
erred her in analysis under either doctrine. Upon careful consideration of your objections,
it appears that you simply rehash your allegations of fraud and bias and the invalidity of
an alleged marriage contract. Most of your objections are vague and thus fail because
they are not specific to the Magistrate Judge Starnella’s findings and determinations in
the Recommendation.
After considering the arguments raised in your objection and performing a de novo
review of the findings you challenge, the Court is overruling your objections and affirming
Magistrate Judge Starnella’s Recommendation. The Court will explain why it is doing so
further below, including a discussion of the legal authority that supports this conclusion.
This order means that your claims are dismissed without prejudice, which means that you
may refile your claims in an appropriate tribunal, if you can satisfy the relevant procedural
and jurisdictional requirements. See Crowe v. Servin, 723 F. App’x 595, 598 (10th Cir.
2018) (“A dismissal without prejudice just means that the plaintiff isn’t barred from refiling
the lawsuit within the applicable limitations period.” (citations and quotations omitted)).
II. 	BACKGROUND
Plaintiff is a party to domestic relations case number 2021DR30874 in Jefferson
County District Court, involving divorce, property distribution, child support, and child
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custody. See, e.g., ECF No. 53, ¶ 1; ECF No. 1, ¶ 1. Plaintiff sought nearly identical relief
in case number 22-cv-01133-CNS-SKC before this same Court. See ECF No. 1 at 3 (in
22-cv-01133-CNS-SKC). The Court dismissed that case for lack of subject matter
jurisdiction under Younger v. Harris, 401 U.S. 37 (1971) based on the parties’ pending
divorce proceedings in state court. ECF No. 30 (Magistrate Judge Recommendation);
ECF No. 32 (affirming and adopting Recommendation).
In the instant lawsuit, Plaintiff asserts that “[t]his action is about State and County
elected officials, employees and private counsel conspiring together against [his] rights
guaranteed by the Constitution of the United States of America, using intimidation, threats
and coercion to force [him to] comply with a contract of the STATE OF COLORADO called
APPLICATION FOR MARRIAGE LICENSE, MARRIAGE LICENSE, F1768420,” which
he contends he signed as a result of “misrepresentation” and certain “concealed” terms
and conditions. ECF No. 1, ¶ 1. He also argues that the state court’s orders are harming
him financially and hurting his relationship with his children. ECF No. 53, ¶¶ 1–4. Plaintiff
asks the Court to enjoin enforcement of the Jefferson County District Court’s orders. Id.,
¶ 8. Specifically, Plaintiff asks the Court to stop the transfer of a real property deed from
him to his ex-wife or to force his ex-wife to buy him out, and to grant him equitable time
and communications with his children. Id.
The 	Jefferson 	County 	Defendants—Defendants 	Vimont, 	Krieger, 	Barr, 	and
Rodriquez—are or were employees of the Jefferson County Department of Human
Services. ECF No. 1 at 6, ¶¶ 6–9. Defendant Barnes is the Executive Director of the
Colorado Department of Human Services. Id. at 5, ¶ 5. Defendant McNulty is a judge in
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Jefferson County. Id., ¶ 10. Defendant Coffey is a clerk of court in Jefferson County. Id.,
¶ 11. The parties refer to Defendants Barnes, McNulty, and Coffey collectively as the
State Defendants. Finally, Defendant Murray is an attorney who represented Plaintiff’s
then-wife in the underlying divorce proceedings. Id., ¶ 12.
Defendants seek dismissal of the claims against them pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). ECF Nos. 8, 15, 35, 37, 60.
III. 	LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter, the
presiding district judge must “determine de novo any part of the magistrate judge’s
[recommended] disposition that has been properly objected to.” Fed. R. Civ. 72(b)(3). An
objection to a recommendation is properly made if it is both timely and specific. United
States v. 2121 East 30th St., 73 F.3d 1057, 1059–60 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059. In conducting
its review, “[t]he district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3).
IV. 	ANALYSIS
Magistrate Judge Starnella determined that Plaintiff’s claims are barred by the
Younger abstention doctrine and the domestic relations exception. She also determined
that Plaintiff’s claims for monetary relief are frivolous. The Court addresses these findings
in turn.
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A. 	Younger Abstention Doctrine
The Younger abstention doctrine requires federal district courts to “abstain from
exercising jurisdiction when three conditions are satisfied: (1) there are ongoing state
court proceedings; (2) the state court offers an adequate forum to hear the plaintiff’s
claims from the federal lawsuit; and (3) the state proceeding involves important state
interests.” Morkel v. Davis, 513 F. App’x 724, 727 (10th Cir. 2013) (citing Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)); see also Younger
v. Harris, 401 U.S. 37, 43–44 (1971). “Younger governs whenever the requested relief
would interfere with the state court’s ability to conduct proceedings, regardless of whether
the relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v.
Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002).
Magistrate Judge Starnella concluded that all three conditions for 	Younger
abstention are satisfied. ECF No. 64 at 8–9. 2 First, she determined that there is no dispute
that the underlying child support proceedings are ongoing. ECF No. 64 at 8. Second, she
explained that Plaintiff does not adequately explain why the state proceedings are an
inadequate forum for him to assert his claims. Id. at 9. And third, she concluded that
domestic disputes, including child support disputes, implicate important matters of state
interest. Id. at 8.
2 On August 27, 2024, the Court denied Plaintiff’s emergency motion for injunctive relief. ECF No. 63. There,
Plaintiff sought to enjoin the state from enforcing the judgments and orders currently in effect in his ongoing
state domestic relations case, case number 2021DR30874, and sought to alter those orders to require
Defendants to provide equitable time and communication with Plaintiff’s daughter and son. See ECF No.
53 at 1, 5. The Court noted that this is the second case Plaintiff filed regarding his divorce proceeding in
Jefferson County state court. The Court previously found that dismissal for lack of subject matter jurisdiction
was proper under Younger v. Harris, 401 U.S. 37 (1971), and it concluded that the same outcome is likely
here. ECF No. 63 at 5–6.
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In his objection, Plaintiff does not contest the first and third requirements of
Younger, but he argues that Colorado does not provide an adequate forum for his claims
because the Colorado courts are biased against him. ECF No. 66 at 2–3, 6–8. 3 The Court
is not persuaded.
Plaintiff essentially rehashes the same arguments he made in his emergency
motion for injunctive relief and responses to the motions to dismiss—arguments that this
Court and Magistrate Judge Starnella have rejected. “[M]ere disagreement with [a]
Magistrate Judge[’s] recommendation does not make the recommendation incorrect or
outside the bounds of his authority.” Witt v. Colorado, No. 22-CV-02242-CNS-NRN, 2023
WL 345960, at *1 (D. Colo. Jan. 20, 2023) (quotation marks and citation omitted); Vista
Partners, Inc. v. Brainscope Co., Inc., No. 19-CV-00138-CMA-SKC, 2019 WL 3543625,
at *4 (D. Colo. Aug. 5, 2019) (disagreeing with the Magistrate Judge’s findings does “not
render th[e] recommendation incorrect” and overruling the plaintiff’s objection after
determining that the objection “boils down to ‘mere disagreement’ with the Magistrate
Judge’s Recommendation” (quoting Rader v. United States, No. CIVA08CV00568-WDM-
MEH, 2008 WL 4949168, at *3 (D. Colo. Nov. 17, 2008)).
3 For example, Plaintiff argues that he has “shown that the extreme bias against me by Russel Murray III,
in the State court proceedings, creating the orders granting his own motions, and denying me any due
process of law, and the individuals of the State court being complicit. The defendants alleged that the
orders drafted and submitted by Russel Murray III were ‘proposed orders.’ If that were true, the
documents would have stated that they were proposed orders which they do not. The orders drafted
and submitted by Russel Murray III are the orders that Diana L. Coffey filed onto the record. They are
the same that Philip J. McNulty signed as his own. This bias is so pervasive and systemic, it ensures that
I have absolutely no recusal provisions.” ECF No. 66 at 7.
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Magistrate Judge Starnella acknowledged Plaintiff’s statements that “fraud upon
the court exists in the divorce case” and that there is “extreme bias” against him, but she
correctly determined that these statements are conclusory and insufficient to defeat
abstention. ECF No. 64 at 9. The Court reaches the same conclusion upon de novo
review. See Knoche v. Droege, No. 24-2150-JWB, 2024 WL 3890169, at *1 (D. Kan. Aug.
19) (rejecting the plaintiff’s “conclusory statement that the forum is not sufficient because
of judicial bias”), appeal dismissed, No. 24-3133, 2024 WL 5442639 (10th Cir. Nov. 19,
2024).
The Supreme Court has said that a state court proceeding will not provide an
adequate opportunity to hear claims from the federal lawsuit “‘only if ‘extraordinary
circumstances’ render the state court incapable of fairly and fully adjudicating the federal
issues before it . . . .” Moore v. Sims, 442 U.S. 415, 433 (1979) (quoting Kugler v. Helfant,
421 U.S. 117, 124–25 (1975)). Plaintiff cannot satisfy this heavy burden.
The Court finds that all elements of the Younger abstention doctrine exist, and
thus, 	Plaintiff’s 	claims 	are 	dismissed 	without 	prejudice 	for 	lack 	of 	subject 	matter
jurisdiction.
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B. 	The Domestic Relations Exception
Magistrate Judge Starnella also determined that dismissal is warranted under the
domestic relations exception—a judicially created exception to federal jurisdiction, which
“divests the federal courts of power to issue divorce, alimony, and child custody decrees.”
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); see also Ex parte Burrus, 136 U.S.
586, 593–94 (1890) (“The whole subject of the domestic relations of husband and wife,
parent and child, belongs to the laws of the States and not to the laws of the United
States.”). “[A] federal court cannot ‘reopen, reissue, correct, or modify’ an order in a
domestic relations case.” Alfaro v. Arapahoe Cnty., 766 F. App’x 657, 659 (10th Cir. 2019)
(quoting Leathers v. Leathers, 856 F.3d 729, 756 (10th Cir. 2017)). Magistrate Judge
Starnella determined “that the domestic relations exception squarely fits this case”
because Plaintiff’s requested relief essentially asks the Court to correct or modifying
orders in his ongoing domestic relations case. 	ECF No. 64 at 12. Thus, the Colorado
domestic relations court is better suited to address Plaintiff’s claims. Id.
Plaintiff does not object to this finding but instead offers a “response.” ECF No. 66,
¶ 26. He states as follows:
The Domestic Relations Exception applies solely to issues
that are in fact the terms and conditions of the void State
contract. 	It 	does 	not 	address 	the 	contract’s 	validity
whatsoever. This action is over the State contract and its
validity. 	The 	contract 	is 	not 	valid 	so 	the 	terms 	are
unenforceable. The individuals acting on behalf of the State
are forcing performance to the terms and conditions of that
contract, 	terms 	described 	in 	the 	Domestic 	Relations
Exception. The acts of forcing performance to these terms is
at question, not the terms themselves. How can I make this
more clear?
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Id. This brief response does not trigger de novo review. 2121 East 30th St., 73 F.3d at
1060 	(holding 	that 	a 	“party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by 	the 	district 	court”). 	Plaintiff 	does 	not 	even 	reference 	any 	findings 	in 	the
Recommendation.
Even though not required, the Court has conducted a de novo review of the
Recommendation and finds that Magistrate Judge Starnella correctly determined that the
domestic relations exception bars Plaintiff’s claims. Plaintiff’s claims are better suited for
state 	court. 	See 	Thompson 	v. 	Romeo, 	728 	F. 	App’x 	796, 	798 	(10th 	Cir. 	2018)
(acknowledging that states have “important state interests” in the “‘whole subject of
domestic relations of husband and wife, parent and child, belongs to the laws of the States
and not the laws of the United States’” (quoting Ankenbrandt, 504 U.S. at 692).
Just as the Younger abstention doctrine bars Plaintiff’s claims, so too does the
domestic relations exception. For this additional reason, Plaintiff’s claims are dismissed
without prejudice for lack of subject matter jurisdiction.
C. 	Plaintiff’s Request for Monetary Relief
Magistrate Judge Starnella also determined that Plaintiff’s request for monetary
relief is based on sovereign citizen ideology because he demands the seizure of
government bonds, and that such demand is frivolous. ECF No. 64 at 9–10. Plaintiff does
not sufficiently object to this finding. He first argues that these “statements appear to be
discriminatory and derogatory and used as a way to brush away my claims as ‘frivolous.’”
ECF No. 66 at 14. He contends that he is “not trying to seize any official’s bond nor is that
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a desire. . . . I have been and am being harmed by the defendants. The State is incapable
of being reasonable and fair in a dispute over the validity one of its contracts.” Id.
The Court is not persuaded because Plaintiff’s statements are belied by his
complaint, where he asks the Court to order “liquidat[ion] [of] the insurance bonds” of
Defendants and “issu[e] full payments to [him],” in a total amount of $2,640,000.00.” ECF
No. 64 at 9 (quoting ECF No. 1, ¶¶ 78, 81–82, 84–85).
Upon de novo review, the Court overrules Plaintiff’s objection and agrees with
Magistrate Judge Starnella that his request for monetary relief is frivolous.
V. 	CONCLUSION
Consistent with the above analysis, the Court makes the following rulings:
(1) 	Plaintiff’s objection, ECF No. 66, is OVERRULED;
(2) 	The 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge
Starnella’s Recommendation, ECF No. 64, as an order of this
Court;
(3) 	Defendants’ motions to dismiss, ECF Nos. 8, 15, 35, 37, and
60, are GRANTED;
(4) 	Defendant Murray’s motion for sanctions, ECF No. 49, is
DENIED as MOOT;
(5) 	Plaintiff’s claims are dismissed without prejudice; and
(6) 	The Clerk of Court is directed to close this case and moot any
pending motions.
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DATED this 20th day of March 2025.

BY T OURT:

Eharlo
United

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