United States District Court, D. Oregon
ORDER TO DISMISS
J. Immergut United States District Judge.
an inmate at the Washington County Jail, brings this civil
action pro se. Pursuant to an Order entered this
date, the Court granted Plaintiffs Application to Proceed
In Forma Pauperis. However, for the reasons set
forth below, the Court dismisses Plaintiffs Complaint.
names as Defendants 25 states and the District of Columbia,
as well as their respective Attorneys General and District
Attorneys (whom he identifies as "Does 1 -1000" for
each) (referred to hereafter collectively as the "state
Defendants"). Plaintiff also names as Defendants
District Judge Michael H. Simon and Magistrate Judge John V.
the state Defendants, Plaintiff seeks to challenge the
validity of state statutes prohibiting the dissemination of
"revenge porn." Plaintiff was convicted under
Oregon's version of the statute, Or. Rev. Stat. §
163.472. Plaintiff alleges the various state laws violate the
First Amendment and federal copyright laws, and are preempted
by other federal statutes.
Judges Simon and Acosta, Plaintiff challenges the following
provision entered in an Order issued by Judge Simon in
Plaintiff may not file a new case in this Court seeking money
damages for his allegedly invalid criminal prosecution unless
he obtains habeas corpus relief or has had his conviction
reversed, expunged, or declared invalid. Plaintiff may not
file a new case in this Court challenging the
constitutionality of Oregon Revised Statutes § 163.472
until he has exhausted his state administrative remedies. The
Clerk of the Court is directed not to accept any new
complaint from Plaintiff raising such claims unless the
complaint contains allegations that these prerequisites have
Barber v. Vance, No. 3:16-cv-02105-AC, January 18,
2019 Order, Docket No. 371, p. 7. Plaintiff alleges the order
violates his First Amendment rights.
of remedy in his Complaint, Plaintiff seeks judgment
declaring the various state laws unconstitutional and
unenforceable, requiring the release of all persons convicted
of violating those laws, enjoining the further enforcement of
the laws, and declaring that Judges Simon and Acosta violated
Plaintiffs First Amendment rights. Plaintiff also filed a
Motion for Preliminary Injunction seeking an order enjoining
the continuing operation of Or. Rev. Stat. § 163.472 and
requiring his release from incarceration.
district court must dismiss an action initiated by a prisoner
seeking redress from a governmental entity or officer or
employee, if the Court determines that the action (I) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief. See 28
U.S.C. § 1915A(b). When a plaintiff is proceeding
pro se, the court must construe the pleadings
liberally and afford the plaintiff the benefit of any doubt.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Moreover, before dismissing a pro se civil rights
complaint for failure to state a claim, the court supplies
the plaintiff with a statement of the complaint's
deficiencies. Karim-Panahi v. Los Angeles Police
Dept, 839F.2d621, 623-24 (9th Cir. 1988); Eldridge
v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro
se litigant will be given leave to amend his or her
complaint unless it is clear that the deficiencies of the
complaint cannot be cured by amendment.
Karim-Panahi, 839 F.2d at 623; Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
previously attempted to challenge the Oregon "revenge
porn" statutes in Barber v. Vance, No.
3:16-cv-02105-AC. On October 10, 2018, Magistrate Judge
Acosta issued a Findings and Recommendation recommending that
Plaintiffs challenge be rejected, and on January 18, 2019,
District Judge Simon issued his Order adopting Judge
Acosta's Findings and Recommendation. Barber v.
Vance, No. ...