v. Feldstein et al

Filing 5

ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF'S 4 APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT AND DENYING PLAINTIFF'S 2 EX PARTE MOTION FOR CEASE AND DESIST: "On the basis of the foregoing, Plaintiff' s Complaint, filed June 29, 2011, is HEREBY DISMISSED WITHOUT PREJUDICE and Plaintiff's Application to Proceed Without Prepayment of Fees and Affidavit, and Plaintiff's Ex Parte Motion for Cease and Desist, also filed June 29, 2011, are HER EBY DENIED AS MOOT. The Court GRANTS Plaintiff until August 15, 2011 to file an amended complaint that addresses the deficiencies identified in this Order. The Court CAUTIONS Plaintiff that his failure to file his amended complaint by August 15, 2011 will result in the AUTOMATIC DISMISSAL of this action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on July 25, 2011. (bbb, )CE RTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAI`I, DEPARTMENT )
OF THE ATTORNEY GENERAL,
)
CHILD SUPPORT ENFORCEMENT
)
AGENCY, ET AL.,
)
)
Defendants.
)
_____________________________ )
DAVID G. FELDSTEIN,,

CIVIL NO. 11-00420 LEK-KSC

ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT
AND DENYING PLAINTIFF’S EX PARTE MOTION FOR CEASE AND DESIST
On June 29, 2011, pro se Plaintiff David G. Feldstein
(“Plaintiff”) filed a Complaint, an Application to Proceed
Without Prepayment of Fees and Affidavit (“Application”), and an
Ex Parte Motion for Cease and Desist (“Ex Parte Motion”).

The

Court finds these matters suitable for disposition without a
hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i
(“Local Rules”).

After careful consideration of the Complaint

and the relevant legal authority, this Court HEREBY DISMISSES the
Complaint WITHOUT PREJUDICE because the only claim over which
federal jurisdiction exists fails to state a claim upon which
relief can be granted.

Further, the Court HEREBY DENIES the

Application and the Ex Parte Motion as moot.

BACKGROUND
The instant case arises from the calculation and
collection of Plaintiff’s child support obligations.

Plaintiff

alleges that, in May 2002, a “hearing’s administrator” from
Defendant State of Hawai`i, Department of the Attorney General,
Child Support Enforcement Agency, Honolulu County, Hawai`i
(“Hawai`i CSEA”) wrongfully calculated his child support payments
based on disputed evidence of Plaintiff’s annual income.
5, ¶ 21.]

[Id. at

Further, Plaintiff alleges that, during 2002, he

discovered that his ex-wife, Olivia B. Feldstein (“Mother”), was
collecting welfare benefits from the State of Hawai`i while
receiving child support from Plaintiff.

According to Plaintiff,

Mother was removed from the welfare program for fraud, but the
Hawai`i CSEA is currently trying to force Plaintiff to repay
Mother’s welfare benefits as part of his child support arrearage.
[Id. at 6, ¶ 22.]

After a motion by Plaintiff and a hearing on

June 29, 2006, the Hawai`i CSEA reduced Plaintiff’s monthly child
support payments to $150 per child and set a payment plan for
Plaintiff’s arrearage.

The family court, however, denied

Plaintiff’s request for retroactive modification of the child
support order.

[Id. at 6, ¶ 25.]

The Complaint states that Plaintiff makes his child
support payments to the Hawai`i CSEA and that Defendant the State
of California, Department of Attorney General, Child Support

2

Enforcement Agency, San Joaquin County, California (“California
CSEA”) issues the payments to Mother in California.

According to

Plaintiff, the California CSEA asserts that it has “Exclusive
Jurisdiction” over Plaintiff’s support payments.
26.]

[Id. at 7, ¶

Plaintiff alleges that the California CSEA “is now sending

threatening letters for collection even though all child support
payments have always been and continually are up to date to the
present time according to Hawaii’s court order.”
omitted).]

[Id. (citation

Plaintiff tried to resolve this apparent conflict

with both the Hawai`i CSEA and the California CSEA, but was
unsuccessful.

He alleges that the California CSEA “did not

allocate all funds collected by [the Hawai`i CSEA and] . . .
Substantively Consolidated funds with other cases and modified
Hawai`i’s court ordered payments allocated to those cases.”
(footnotes omitted).]

[Id.

Plaintiff states that he has another child

support matter in the County of Santa Clara and that he settled a
payment plan in that matter.

According to Plaintiff, the funds

from the Santa Clara matter are “commingled . . . with San
Joaquin county’s case.”

[Id. at 7 n.4.]

Plaintiff alleges that it is impossible for him to meet
the child support requirements that the Hawai`i CSEA and the
California CSEA (collectively “Defendants”) have placed on him.
[Id. at 8, ¶ 28.]

As a result of Plaintiff’s apparent failure to

pay his child support obligations, one of the Defendants -

3

Plaintiff does not specify which - has denied Plaintiff’s
passport and drivers license applications.
31.a.]

[Id. at 8, ¶¶ 31-

Plaintiff contends that this was “unconstitutional, null

and void, and of no effect, without ‘Substantive due process’”
because it has, inter alia: deprived him of his ability to pursue
his profession, which requires international travel; limited his
earning capacity; and impaired his relationships with his present
family.

[Id. at 8-9, ¶¶ 31-31.b.]

Plaintiff alleges that he has

been “deprived of his rights to work, in violation of the Fourth
Amendment to the United States Constitution, and travel abroad,
in violation of the Fifth Amendment to the United States
Constitution, without Substantive Due Process of Law.”

[Id. at

9, ¶ 32.]
The Complaint’s prayer for relief includes requests for
the following: an order requiring Defendants to cease and desist
any and all violations; restitution from Defendants and any
others; recalculation of his child support obligations;
recalculation of his child support arrearage to exclude any
obligation for Plaintiff to repay Mother’s welfare benefits; an
order declaring that Plaintiff has a right to obtain a passport
and a drivers license so that he can work; and any other
appropriate relief.

[Id. at 10-11, ¶¶ 34-36, 38.]
DISCUSSION

This district court has recognized that:

4

A court may deny leave to proceed in forma
pauperis at the outset if it appears from the
facts of the proposed complaint that the action is
frivolous, fails to state a claim on which relief
may be granted, or seeks monetary relief against a
defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2). See Minetti v. Port of
Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998).
As such, pro se plaintiffs proceeding in
forma pauperis “must also be given an opportunity
to amend their complaint unless it is absolutely
clear that the deficiencies of the complaint could
not be cured by amendment.” Tripati v. First
Nat’l Bank & Trust, 821 F.2d 1368, 1370 [(9th Cir.
1987)] (internal citations omitted).
Lopez-Ruiz v. Tripler Army Med. Ctr., Civil No. 11-00065 SOM/KSC,
2011 WL 466784, at *1 (D. Hawai`i Feb. 4, 2011) (some alterations
in original).
Plaintiff brings the instant action pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201, and the Uniform
Interstate Family Support Act, 42 U.S.C. § 666(f).
2.]

[Complaint at

Plaintiff also argues that there is diversity jurisdiction

in this case pursuant to 28 U.S.C. § 1391.

Plaintiff’s reliance

on these statutes is misplaced.
I.

Declaratory Judgment Act
“It is well settled that the Declaratory Judgment Act

does not itself confer federal subject matter jurisdiction but
merely provides an additional remedy in cases where jurisdiction
is otherwise established.”

City of Colton v. Am. Promotional

Events, Inc.-West, 614 F.3d 998, 1006 (9th Cir. 2010) (citation
and quotation marks omitted).

The Declaratory Judgment Act alone

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cannot provide the basis for federal jurisdiction in the instant
case.
II.

Uniform Interstate Family Support Act
Plaintiff next argues that there is federal

jurisdiction because Defendants failed to apply “the Federally
mandated legislation of the Uniform Interstate Family Support
Act[.]”

[Complaint at 2.]
[I]n order to receive certain federal funds
related to child support enforcement, states must
adopt the Uniform Interstate Family Support Act,
42 U.S.C. § 666(f), which requires a state to
enforce another state’s child support order “if
the issuing tribunal had jurisdiction,” see, e.g.,
N.Y. Fam. Ct. Act § 580-603(c).

United States v. Kerley, 416 F.3d 176, 180 (2d Cir. 2005).
Although federal law gives states incentive to adopt the Uniform
Interstate Family Support Act,1 the act itself is not a federal
law, but a model state law.

See, e.g., Nunnery v. Florida, 102

1

All of the states have adopted the Uniform Interstate
Family Support Act in one form or another. See In re Request for
Judicial Assistance from the Dist. Court in Svitavy, Czech
Republic, 748 F. Supp. 2d 522, 527-28 n.2 (E.D. Va. 2010) (citing
Uniform Interstate Family Support Act (2008) (adopted by three
states), available at http://www.law.upenn.edu/bll/archives/
ulc/uifsa/2008final.pdf (last accessed Sept. 14, 2010); Uniform
Interstate Family Support Act (2001) (adopted by 20 states and
the District of Columbia), available at http://www.law.upenn.edu/
bll/archives/ulc/uifsa/final2001.pdf (last accessed Sept. 14,
2010); Uniform Interstate Family Support Act (1996) (adopted by
27 states and the Virgin Islands), available at http://www.law.
upenn.edu/bll/archives/ulc/fnact99/1990s/uifsa96.pdf (last
accessed Sept. 14, 2010)).
Hawai`i adopted the 1996 version. See Haw. Rev. Stat. §§
576B-101 to 576B-902.
6

F. Supp. 2d 772, 776 (E.D. Mich. 2000).

The Uniform Interstate

Family Support Act “was developed by the National Conference of
Commissioners on Uniform State Laws in 1992 to create uniformity
in interstate child support proceedings, and thereby foster
greater consistency and efficiency in the enforcement of
interstate child support cases.”
marks omitted).

Id. (citation and quotation

Neither the Uniform Interstate Family Support

Act nor the federal statutes encouraging states to adopt it
create a private right of action to litigate child support
obligations in federal court.
III. Diversity Jurisdiction
Plaintiff’s Complaint alleges that venue is proper in
this district court “pursuant to 28 U.S.C.§1391 ‘diversity
jurisdiction’.”

[Complaint at 2.]

Although § 1391 addresses

venue, this Court will liberally construe Plaintiff’s Complaint
as asserting diversity jurisdiction pursuant to 28 U.S.C. §
1332(a).

See Jackson v. Carey, 353 F.3d 750, 756-57 (9th Cir.

2003) (“In civil rights cases where the plaintiff appears pro se,
the court must construe the pleadings liberally and must afford
plaintiff the benefit of any doubt.” (citation and quotation
marks omitted)).
Pursuant to § 1332(a)(1), the United States District
Courts have original jurisdiction over actions between citizens
of different states where the amount in controversy exceeds

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$75,000, excluding interest and costs.

“Diversity jurisdiction

requires complete diversity between the parties-each defendant
must be a citizen of a different state from each plaintiff.”

In

re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th
Cir. 2008) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267,
267, 2 L. Ed. 435 (1806)).

Based on the allegations of the

Complaint, complete diversity is lacking in this case because
both Plaintiff and the Hawai`i CSEA are citizens of Hawai`i.
[Complaint at 3, ¶¶ 4-5.]

The Court also notes that the

allegations of the Complaint do not establish that the amount in
controversy exceeds $75,000.

This Court therefore FINDS that it

does not have diversity jurisdiction over the instant case.
IV.

Claim for Violation of Plaintiff’s Constitutional Rights
Plaintiff alleges that the denial of his passport

application and drivers license violated his rights under the
Fourth and Fifth Amendments to the United States Constitution.
[Id. at 8-9, ¶¶ 31-32.]

The Court liberally construes these

allegations as asserting a claim pursuant to 42 U.S.C. § 1983,
which states, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage . . .
subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress. . . .
This district court has federal question jurisdiction over
8

Plaintiff’s § 1983 claim pursuant to 28 U.S.C. § 1331.
Plaintiff’s Complaint, however, does not state a plausible § 1983
claim.
[A] person “subjects” another to the deprivation
of a constitutional right, within the meaning of §
1983, “if he does an affirmative act, participates
in another’s affirmative act, or omits to perform
an act which he is legally required to do that
causes the deprivation of which complaint is
made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th
Cir. 1978). The requisite causal connection may
be established when an official sets in motion a
“series of acts by others which the actor knows or
reasonably should know would cause others to
inflict” constitutional harms. Id.
Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175,
1183 (9th Cir. 2007) (some citations omitted).
First, Defendants are state agencies and “[s]tate
agencies . . . are not ‘persons’ within the meaning of § 1983,
and are therefore not amenable to suit under that statute.”
Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (citing
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70, 109 S. Ct.
2304, 105 L. Ed. 2d 45 (1989)).
Further, as noted by this district court in another
order dismissing a complaint filed a pro se plaintiff seeking to
proceed in forma pauperis:
Even if the court could construe the Hawaii
State Hospital as a local governmental unit
susceptible to liability under § 1983, Lawrence
fails to allege that “a deliberate policy, custom,
or practice . . . was the ‘moving force’ behind
the constitutional violation . . . suffered.”
Galen v. County of Los Angeles, 477 F.3d 652, 667
9

(9th Cir. 2007); City of Canton, Ohio, v. Harris,
489 U.S. 378, 385 (1989). While detailed
allegations are not required, a plaintiff must set
forth “the grounds of his entitlement to
relief[,]” which “requires more than labels and
conclusions, and a formulaic recitation of the
elements of a cause of action. . . .” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, --------,
127 S. Ct. 1955, 1964-65 (2007) (internal
quotations and citations omitted). Lawrence has
not stated a claim under § 1983 against the Hawaii
State Hospital . . . .
Lawrence v. Kaneohe State Hosp., Civil No. 11-00020 SOM-KSC, 2011
WL 280958, at *2 (D. Hawai`i Jan. 25, 2011) (some alterations in
original).

Similarly, in the present case, even if the Hawai`i

CSEA and the California CSEA were susceptible to suit under §
1983, the Complaint does not allege that they had deliberate
policies, customs or practices that were the moving force behind
Plaintiff’s alleged constitutional injury.

The Court therefore

DISMISSES Plaintiff’s § 1983 claim WITHOUT PREJUDICE.
Insofar as the only claim over which this Court has
jurisdiction fails to state a claim upon which relief can be
granted, the Court declines to exercise supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(a) over any state law claims alleged
in the Complaint.

See 28 U.S.C. § 1367(c)(3).

The Court

therefore DISMISSES all state law claims in the Complaint WITHOUT
PREJUDICE.

The Court expresses no opinion on the merits of

Plaintiff’s claims regarding the determination of his present
child support obligations and his child support arrearage.

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V.

Leave to Amend
The Court grants Plaintiff until August 15, 2011 to

file an amended complaint that cures the deficiencies identified
in this Order.

The Court cautions Plaintiff that it will not

refer to his original Complaint to make any amended complaint
complete. Local Rule 10.3 requires that an amended complaint be
complete in itself without reference to any prior pleading.
Further, as a general rule, “when a plaintiff files an amended
complaint, ‘[t]he amended complaint supercedes the original, the
latter being treated thereafter as non-existent.’”

Rhodes v.

Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (quoting Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (alteration in Rhodes)).
Thus, if Plaintiff wishes to include any of the Defendants named
in the original Complaint in the amended complaint, and if he
wishes to reallege any of the claims alleged in the original
Complaint in the amended complaint, he must do so expressly, and
must sufficiently allege each claim and each defendant’s
involvement.

The failure to rename any defendant or reallege any

claim in any amended complaint will be deemed a waiver.

See King

v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted).
CONCLUSION
On the basis of the foregoing, Plaintiff’s Complaint,
filed June 29, 2011, is HEREBY DISMISSED WITHOUT PREJUDICE and
Plaintiff’s Application to Proceed Without Prepayment of Fees and
11

Affidavit, and Plaintiff’s Ex Parte Motion for Cease and Desist,
also filed June 29, 2011, are HEREBY DENIED AS MOOT.
The Court GRANTS Plaintiff until August 15, 2011 to
file an amended complaint that addresses the deficiencies
identified in this Order.

The Court CAUTIONS Plaintiff that his

failure to file his amended complaint by August 15, 2011 will
result in the AUTOMATIC DISMISSAL of this action for failure to
state a claim.

See 28 U.S.C. § 1915(e)(2)(B)(ii).

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 25, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

DAVID G. FELDSTEIN V. STATE OF HAWAII, ETC., ET AL; CIVIL NO. 1100420 LEK-KSC; ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT
AND DENYING PLAINTIFF’S EX PARTE MOTION FOR CEASE AND DESIST.

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