May v. Whitefield

Full title: DAVID A. MAY, Plaintiff, v. ELIZABETH WHITEFIELD, BETH ROTH, M. DIANN…

Court: United States District Court, D. New Mexico

Date published: Dec 16, 2009

CIV 09-763 BB/CG (D.N.M. Dec. 16, 2009)

Opinion

CIV 09-763 BB/CG.

December 16, 2009

MEMORANDUM OPINION ORDER

BRUCE BLACK, District Judge

Upon further review of this matter, the referral to the Magistrate Judge is hereby revoked, see Doc. 39, and for the reasons below, this action is dismissed.

As Plaintiff's Complaint, Plaintiff's motion to compel, the show cause order issued by Magistrate Judge Carmen Garza initially entered, and Defendants' motions to dismiss all illustrate, Plaintiff is challenging his state court divorce and custody proceedings. Evidently, the divorce degree has been entered but the proceedings are ongoing, and Plaintiff is suing all of the people who are or have been involved with the proceedings. He seeks damages and injunctive relief for the anguish and he has suffered. See Docs. 1, 1-2, 4, 5, 23, 29.

For the reasons stated in the show cause order, Defendants' motions, and otherwise, this action should be dismissed because each defendant is absolutely, quais- or qualifiedly immune, or is not a state actor, or because this Court lacks jurisdiction under an abstension principle be it, Rooker-Feldman, Younger, the "domestic relations" exception (to the extent any of the defendants are diverse), or the Eleventh Amendment prohibition of the recovery of damages against a State. In addition to the authorities cited in those documents, see also, for example, Chapman v. Oklahoma, 472 F.3d 747 (10^th Cir. 2006) (finding Younger abstension applicable to action by noncustodial parent challenging the family court system of the State of Oklahoma, and declining to discuss applicability of Rooker-Feldman in light of Lance v. Dennis, 546 U.S. 459 (2006) (per curium) or the domestic relations exception to federal jurisdiction or Eleventh Amendment immunity); Jackson v. Davidson, 272 Fed App'x 722 (10^th Cir. 2008) (holding action seeking to enjoin enforcement of state divorce decree is "precisely the type of claim encompassed by the Rooker — Feldman doctrine" and quoting Van Sickle v. Holloway, 791 F.2d 1431, 1436 (10^th Cir. 1986) for proposition that "[f]ederal 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"); Harrington v. Wilson, 242 Fed. App'x 514 (10^th Cir. 2007) (virtually identical sort of action to this one, dismissed claims against various defendants on Rooker-Feldman, Younger, absence of state action, absolute immunity and other jurisdictional grounds).

However, because the grounds for dismissal are jurisdictional, dismissal is without prejudice. See Harrington, 42 Fed. App'x at 516 ("All three grounds are jurisdictional, and therefore all should result in dismissals without prejudice.") (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1214 (10^th Cir. 2006) for proposition that "`A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction, as it did here, the dismissal must be without prejudice.'").

Wherefore,

IT IS HEREBY ORDERED THAT:

1. my referral to the Magistrate Judge for a recommendation under 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Virginia Beach Fed. Sav. Loan Ass'n v. Wood, 901 F.2d 849 (10^th Cir. 1990) (Doc. 39) is REVOKED;

2. Defendants' motions to dismiss (Docs. 23, 29) are GRANTED;

3. Plaintiff's motion to "compel" (Doc. 5) is DENIED;

4. the motion to stay the action pending ruing on the motions to dismiss (Doc. 31) is DENIED AS MOOT;

5. this action be dismissed WITHOUT PREJUDICE; and

6. a final order enter concurrently herewith.