Surface v. Burke

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 24-cv-01736-CNS-KAS
RAYMOND TODD SURFACE,
Plaintiff,
v.
KELLY ANN BURKE,
Defendant.
ORDER
Before the Court is the Recommendation of United States Magistrate Judge
Kathryn A. Starnella. ECF No. 15. Magistrate Judge Starnella recommends dismissing
Plaintiff’s claims for lack of subject-matter jurisdiction under the domestic-relations
exception. Plaintiff did not object to the Recommendation. For the following reasons, the
Court affirms and adopts the Recommendation and dismisses the case without prejudice.
I. 	SUMMARY FOR PRO SE PLAINTIFF
Your allegations arise from a child custody dispute concerning your young
daughter 	and 	the 	related 	ongoing 	state 	court 	case. 	Magistrate 	Judge 	Starnella
determined that your claims attacking those state proceedings were improperly filed in
federal court and should remain in state court. She therefore recommends that this Court
dismiss your claims without prejudice for lack of subject-matter jurisdiction.
Case No. 1:24-cv-01736-CNS-KAS Document 16 filed 01/06/25 USDC Colorado
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At the end of her Recommendation, Magistrate Judge Starnella advised that you
had 14 days after service of the Recommendation to file a written objection. ECF No. 15
at 9. You did not file an objection or otherwise respond within that window. As explained
in more detail below, the Court has reviewed the Recommendation and has determined
that it is correct. The Court will explain why it is adopting the Recommendation in more
detail below, including a discussion of the legal authority that supports this conclusion.
Because the Court is affirming Magistrate Judge Starnella’s Recommendation and
granting Defendant’s motion to dismiss, your claims against Defendant are dismissed
without prejudice, which means that you may refile your claims in the appropriate tribunal,
if you can satisfy the 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. 	RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Plaintiff, who proceeds pro se, initiated this action on June 21, 2024. ECF No. 1.
He 	lodges 	several 	complaints 	against 	his 	ongoing 	state 	domestic-relations 	case,
21DR30902, concerning a child custody dispute regarding his young child. Id. at 5-8
(“Cause of Action” section); id. at 7 (alleging that a state court judge is “presiding over the
parenting case . . . and has not ruled on the case 12 months d[e]spite hearing closing
arguments one year ago”). Defendant, the biological mother of the young child, moved to
dismiss the action under Federal Rule of Civil Procedure 12(b)(1) or, alternatively, under
Federal Rule of Civil Procedure 12(b)(6). ECF No. 7.
Case No. 1:24-cv-01736-CNS-KAS Document 16 filed 01/06/25 USDC Colorado
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III. 	ANALYSIS & ORDER
Under 28 U.S.C. § 636(b)(1)(B), this Court may designate a magistrate judge to
consider 	dispositive 	motions 	and 	submit 	recommendations 	to 	the 	Court. 	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. P. 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).
When—as is the case here—neither party objects to a Magistrate Judge’s
Recommendation, the Court “may review a magistrate [judge]’s report under any standard
it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(citing Thomas v. Arn, 474 U.S. 140, 150 (1985)). The Court is “accorded considerable
discretion” when reviewing “unchallenged” recommendations. Id.
The Court has reviewed Magistrate Judge Starnella’s Recommendation and is
satisfied that it is sound, the analysis is thorough and comprehensive, and there is no
clear error on the face of the record.
The 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge 	Starnella’s
Recommendation, ECF No. 15, in its entirety as an order of this Court. Accordingly, the
Court GRANTS Defendant’s Motion to Dismiss. ECF No. 7. The Clerk of Court is directed
to close this case.
Case No. 1:24-cv-01736-CNS-KAS Document 16 filed 01/06/25 USDC Colorado
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DATED this 6th day of January 2025.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
BY THE	E	E	E C	C	C	C	C	COU	O	O	O	O	O 	RT:
______	__	__	____	__	__	__	____	__	__	__	_ __	__	__	__	____	__	__	_ __	__	__	_________________
Ch	Ch	Ch	Ch	Ch	C	C	C	C	C	C	C	C	C	C	C	C	C arlottee N	N.	N	N Swe	we	we	weeeney
United Sta	ta	taa	tate	te	te	te	tessss Di	D	D	D strict JJJJud	ud	udd	udge
Case No. 1:24-cv-01736-CNS-KAS Document 16 filed 01/06/25 USDC Colorado
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