Henry v. State of Alaska Department of Revenue Child Support Services Division et al

Filing 53

ORDER DISMISSING THIS ACTION WITHOUT PREJUDICE. Signed by Magistrate Judge Jacqueline Scott Corley on 5/31/2012. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 5/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RONALD HENRY,

Northern District of California

United States District Court

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Plaintiff,

Case No.: 11-3255 (JSC)
ORDER DISMISSING THIS ACTION
WITHOUT PREJUDICE

v.

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STATE OF CALIFORNIA
DEPARTMENT OF CHILD SUPPORT
SERVICES, et al.,

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Defendants.

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Plaintiff, proceeding pro se, filed an amended complaint challenging the

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constitutionality of various government efforts to collect delinquent child support payments.

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The California Department of Child Support Services is the only remaining Defendant in this

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action. (Dkt. No. 25.) Now pending before the Court is Defendant’s Motion to Dismiss

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Plaintiff’s Amended Complaint. (Dkt. No. 39.) In lieu of filing a response to this motion,

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Plaintiff petitioned the Court to dismiss this case as moot due to an ongoing state court action.

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(Dkt. No. 48.) The Court GRANTS Plaintiff’s request and dismisses this action without

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prejudice.

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ALLEGATIONS AGAINST DEFENDANT IN THE AMENDED COMPLAINT

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Plaintiff claims to owe approximately $50,000 in child support payments for a child

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born in Alaska who is now over the age of 18. The gravamen of Plaintiff’s amended

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complaint1 is that because his son is no longer a minor, it is unconstitutional for federal or

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state authorities to continue to impose consequences on Plaintiff for his failure to pay past

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child support obligations. Plaintiff makes three specific claims of unconstitutional conduct

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against Defendant. First, Plaintiff alleges that Defendant maintains his name on a list of child

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support obligors, which subjects Plaintiff to a federal law that prohibits the issuance of

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passports to persons who are in arrears on child support payments. See 42 U.S.C. '652(k).
license pursuant to California Family Code §17520 and “a federal statute which authorizes the

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Northern District of California

Second, he challenges Defendant’s 2008 suspension of his California commercial driver

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United States District Court

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states to employ license suspension as a means to compel compliance with a child support

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order.” (Dkt. No. 16 at 3); See 42 USC §666(a). Third, he challenges Defendant for income

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withholding and reporting his delinquent child support payment status to various entities,

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including credit agencies and the Secretary of the Treasury. More generally, Plaintiff also

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appears to claim the United States Department of Health and Human Services and the United

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States Department of State are responsible for enforcing—or compelling California and

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Alaska to enforce—various federal laws that violate Plaintiff’s constitutional rights, including

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those affecting issuance of a passport and a commercial driver license.
PROCEDURAL HISTORY

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Pursuant to 28 U.S.C. §1915, the Court granted Plaintiff’s application to proceed in

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forma pauperis but dismissed his initial complaint for lack of standing and failure to state a

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claim. (Dkt. No. 7.) The Court granted Plaintiff leave to amend but questioned whether

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Plaintiff could allege sufficient facts to establish personal jurisdiction over the State of Alaska.

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(Dkt. No. 7 at 6.) Plaintiff twice requested extensions of time to file an amended complaint

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(Dkt. Nos. 9, 13), which the Court granted (Dkt. Nos. 10, 14).

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Plaintiff filed an amended complaint (Dkt. No. 16) and then corrections and a “supplement.”
(Dkt. No. 23.) The Court considers these two documents together as Plaintiff’s amended
complaint.
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Plaintiff filed an amended complaint in two parts: an amended complaint and a

Plaintiff appeared to dismiss all claims against the federal government (Dkt. No. 23 at 2), and

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the Court dismissed the State of Alaska as a defendant due to lack of personal jurisdiction.

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(Dkt. No. 25 at 4.) Plaintiff later argued that he only intended to agree to dismiss the United

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States Department of State as a defendant, and the Department of Health and Human Services

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(“DHHS”) was therefore improperly dismissed. (Dkt. No. 35 at 7.) The Court previously held

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that Plaintiff did not have standing to bring his claim against the federal government for

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theoretically denying him access to a passport since he had not actually applied for a passport.

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(Dkt. No. 25 at 2.) As it was not clear if Plaintiff alleged any other specific harms suffered as

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a result of the federal government in general or DHHS in particular, the Court ordered

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Northern District of California

supplement to the amended complaint. (Dkt. Nos. 16, 23.) In this amended complaint,

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United States District Court

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Plaintiff to show cause as to why DHHS was a proper defendant in this action. (Dkt. No. 38.)

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Plaintiff declined to file a response.

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Plaintiff also filed numerous motions to withdraw his consent (Dkt. No. 6) to a

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magistrate judge (Dkt. Nos. 26, 34, 35), which were denied (Dkt. No. 38). Plaintiff then filed

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an uncertified appeal with the Ninth Circuit. (Dkt. No. 41.) Plaintiff also filed a Motion to

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Stay Case Pending Appeal. (Dkt. No. 42.) The Court denied this motion but granted Plaintiff

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an additional week to file his response both to Defendant’s motion to dismiss and the Court’s

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order to show cause regarding DHHS. (Dkt. No. 44.) Plaintiff missed this extended deadline,

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and the Court ordered Plaintiff to file any response forthwith. (Dkt. No. 47.) Plaintiff opted

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not to file either response and instead petitioned the Court to dismiss this case due to

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Plaintiff’s perception that an ongoing state court action about his delinquent child support

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would ultimately be resolved in his favor. (Dkt. No. 48.) He did not, however, specify

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whether he sought dismissal with or without prejudice and he did not appear at oral argument

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on Defendant’s motion to dismiss.

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Following oral argument Defendant responded in writing to Plaintiff’s request for

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dismissal. Defendant contends that the superior court has retained jurisdiction over Plaintiff’s

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child support action and has stayed the child support enforcement action and released Henry’s

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commercial driver license pending an August 10, 2012 hearing on Henry’s motion to vacate

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the child support order. (Dkt. No. 51.) Nonetheless, Defendant contends that the Court

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should grant Plaintiff’s request for dismissal or, in the alternative, dismiss this action in accord

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with Younger and Rooker-Feldman doctrines.
DISCUSSION

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Federal Rule of Civil Procedure 41(a) provides that a plaintiff may dismiss an action

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without court order by filing “a notice of dismissal before the opposing party serves either an

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answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). Here, no

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defendant has answered the complaint nor has any defendant moved for summary judgment;
technically a “notice of dismissal,” in light of Plaintiff’s status as a pro se litigant, the Court

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Northern District of California

accordingly, Plaintiff has the right to dismiss his claims. While his request for dismissal is not

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United States District Court

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will construe the pleading as a Rule 41(a)(1) notice of dismissal.
Such a unilateral dismissal is without prejudice unless the notice provides otherwise.

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Fed. R. Civ. P. 41(a)(1)(B). As Plaintiff’s notice does not so indicate, the dismissal of his

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claims is without prejudice. See Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

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1997).
CONCLUSION

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Per Plaintiff’s unopposed request, this action is DISMISSED without prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(1). The Clerk shall terminate the case.

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IT IS SO ORDERED.

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Dated: May 31, 2012

__________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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