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Barber v. State

United States District Court, D. Oregon

October 5, 2019

BENJAMIN BARBER, Plaintiff,
v.
STATE OF OREGON; ATTORNEY GENERAL OF OREGON; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF OREGON); STATE OF ALABAMA; ATTORNEY GENERAL FOR ALABAMA, DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF ALABAMA); STATE OF ARKANSAS; ATTORNEY GENERAL FOR ARKANSAS, DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF ARKANSAS); STATE OF CALIFORNIA; ATTORNEY GENERAL OF CALIFORNIA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF CALIFORNIA); STATE OF COLORADO; ATTORNEY GENERAL OF COLORADO; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF COLORADO); STATE OF CONNECTICUT; ATTORNEY GENERAL OF CONNECTICUT; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF CONNECTICUT); DISTRICT OF COLUMBIA; ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE DISTRICT OF COLUMBIA); STATE OF FLORIDA; ATTORNEY GENERAL OF FLORIDA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF FLORIDA); STATE OF ILLINOIS; ATTORNEY GENERAL OF ILLINOIS; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF ILLINOIS); STATE OF LOUISIANA; ATTORNEY GENERAL OF STATE OF LOUISIANA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF LOUISIANA); STATE OF MAINE; ATTORNEY GENERAL OF MAINE; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF MAINE; STATE OF MINNESOTA; ATTORNEY GENERAL OF MINNESOTA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF MINNESOTA); STATE OF NEVADA; ATTORNEY GENERAL OF NEVADA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF NEVADA); STATE OF NEW HAMPSHIRE; ATTORNEY GENERAL OF NEW HAMPSHIRE; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF NEW HAMPSHIRE); STATE OF NEW MEXICO; ATTORNEY GENERAL FOR NEW MEXICO; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF NEW MEXICO); STATE OF NORTH CAROLINA; ATTORNEY GENERAL FOR NORTH CAROLINA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF NORTH CAROLINA); STATE OF NORTH DAKOTA; ATTORNEY GENERAL OF NORTH DAKOTA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF NORTH DAKOTA); STATE OF OKLAHOMA; ATTORNEY GENERAL OF OKLAHOMA; DOES 1-1000 (DISTRICT ATTORNEYS OF THE STATE OF OKLAHOMA); STATE OF PENNSYLVANIA; ATTORNEY GENERAL OF PENNSYLVANIA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF PENNSYLVANIA); STATE OF TEXAS; ATTORNEY GENERAL OF TEXAS; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF TEXAS); STATE OF UTAH; ATTORNEY GENERAL OF UTAH; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF UTAH; STATE OF VERMONT); ATTORNEY GENERAL OF VERMONT; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF VERMONT); STATE OF VIRGINIA; ATTORNEY GENERAL OF VIRGINIA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF VIRGINIA); STATE OF WASHINGTON; ATTORNEY GENERAL OF WASHINGTON; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF WASHINGTON); STATE OF WEST VIRGINIA; ATTORNEY GENERAL OF WEST VIRGINIA; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF VIRGINIA); STATE OF WISCONSIN; ATTORNEY GENERAL OF WISCONSIN; DOES 1-1000 (DISTRICT ATTORNEYS FOR THE STATE OF WISCONSIN); HON. JUDGE SIMON FOR THE U.S. DISTRICT COURT FOR THE DISTRICT OF OREGON; and HON. JUDGE ACOSTA FOR THE U.S. DISTRICT COURT FOR THE DISTRICT OF OREGON, Defendants.

          ORDER TO DISMISS

          Karin J. Immergut United States District Judge.

         Plaintiff, 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.

         BACKGROUND

         Plaintiff 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. Acosta.

         As to 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.

         As to Judges Simon and Acosta, Plaintiff challenges the following provision entered in an Order issued by Judge Simon in another case:

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 been met.

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.

         Byway 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.

         STANDARDS

         A 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).

         DISCUSSION

         I. State Defendants

         Plaintiff previously attempted to challenge the Oregon "revenge porn" statutes in Barber v. Vance, No. 3:16-cv-02105-AC.[1] 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. ...


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