Griffin v. The State of Alabama
MEMORANDUM OPINION AND ORDER. Signed by Judge Madeline Hughes Haikala on 1/26/2017. (AVC)
2017 Jan-26 PM 12:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KENNETH RAY GRIFFIN, JR.,
THE STATE OF ALABAMA, et al.,
Case No.: 3:16-cv-00480-MHH
MEMORANDUM OPINION AND ORDER
In 2007, an Alabama jury convicted plaintiff Kenneth Ray Griffin, Jr. of a
violation of Alabama Code § 13A-12-192(b). Section 13A-12-192(b) prohibits the
knowing possession of “obscene matter that contains a visual depiction of a person
under the age of 17 years engaged in an act of sado-masochistic abuse, sexual
intercourse, sexual excitement, masturbation, genital nudity, or other sexual
conduct.” ALA. CODE § 13A-12-192(b). In this § 1983 action, Mr. Griffin argues
that Alabama Code § 13A-12-192(b) is overly broad and violates the First
Amendment because § 13A-12-192(b) prohibits not only the possession of
prohibited images of minors but also the possession of obscene depictions of
adults. Mr. Griffin asks the Court to declare the statute unconstitutional. (Docs.
13, 15; see also Doc. 30). Pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6), the State of Alabama, one of the defendants in this case, asks the
Court to dismiss Mr. Griffin’s amended complaint for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted. (Doc.
17, p. 1). For the reasons stated below, the Court grants the motion to dismiss.
Dismissal under Rule 12(b)(1)
Under the Rooker-Feldman doctrine, lower federal courts may not entertain
federal claims that amount to appeals of final state-court judgments. Lance v.
Dennis, 546 U.S. 459, 463 (2006) (a plaintiff who wishes to appeal a state-court
judgment must do so in the United States Supreme Court). The Rooker-Feldman
doctrine is narrow, intended to apply only to “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and
rejection of those judgments.” Id. at 464. The State of Alabama argues that the
Rooker-Feldman doctrine prohibits the Court from exercising jurisdiction over Mr.
Griffin’s claims because Mr. Griffin’s amended complaint “is the functional
equivalent of an appeal . . . from his state-court criminal judgment.” (Doc. 17, p.
2). The Court disagrees.
Although “a state-court decision is not reviewable by lower federal
courts, . . . a statute or rule governing the decision may be challenged in a federal
action.” Skinner v. Switzer, 562 U.S. 521, 532 (2011). Here, Mr. Griffin does not
attempt to appeal his criminal conviction. Instead, he challenges the constitutional
validity of § 13A-12-192(b), the statute that governs his conviction.
Skinner, Mr. Griffin is free to do so. Id. at 532 (finding “no lack of subject-matter
jurisdiction” over a plaintiff’s challenge to the constitutionality of the criminal
statute under which he had been convicted); see also D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 487 (1983) (finding jurisdiction where “[t]he respondents’
claims . . . d[id] not require review of a judicial decision in a particular case[,]” but
instead involved a general constitutional attack). Accordingly, the Court denies the
State of Alabama’s Rule 12(b)(1) motion to dismiss Mr. Griffin’s amended
complaint for lack of subject matter jurisdiction. (Doc. 17, pp. 2–4).
Dismissal under Rule 12(b)(6)
Under Rule 12(b)(6), a defendant may move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” See FED. R. CIV. P.
12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). The Court accepts the plaintiff’s allegations as true
when considering a defendant’s motion to dismiss a complaint and asks whether
the plaintiff alleges facts that allow the Court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see Maledy v. City of Enter., 2012 WL 1028176, at *1 (M.D. Ala.
March 26, 2012). A complaint that alleges such facts is “‘plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Because Mr. Griffin is representing himself in this action, the Court
liberally construes his amended complaint and holds the amended complaint to a
less stringent standard than pleadings drafted by an attorney. Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003) (citing Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998)).
The State of Alabama argues that, even liberally construed, Mr. Griffin’s
amended complaint fails to state a claim for relief under Rule 12(b)(6) because Mr.
Griffin’s claims are barred by the doctrine of claim preclusion and Mr. Griffin’s
claims are implausible on the merits. (Doc. 17, pp. 4–10). The Court examines
each argument in turn.
“Because the prior judgment at issue was an Alabama-court judgment, this
court must apply Alabama’s law of preclusion.” Sophocleus v. Ala. Dep’t of
Transp., 605 F. Supp. 2d 1209, 1218 (M.D. Ala. 2009); see also N.A.A.C.P. v.
Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (“Federal courts apply the law of the
state in which they sit with respect to the doctrine of res judicata.”). Under
Alabama claim-preclusion law, a subsequent suit is barred if there was “(1) a prior
judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with
substantial identity of the parties, and (4) with the same cause of action presented
in both suits.” Sophocleus, 605 F. Supp. 2d at 1218–19 (quoting N.A.A.C.P., 891
F.2d at 1560) (internal citation and quotation marks omitted). If these elements are
met, then “any claim that was or could have been adjudicated in the previous
action is precluded.” N.A.A.C.P., 891 F.2d at 1560. Mr. Griffin’s claims are not
precluded because his federal claims and his state criminal conviction do not
present the same cause of action.
Causes of action are the same if they “arise out of the same nucleus of
Sophocleus, 605 F. Supp. 2d at 1219; see also Baloco v.
Drummond Co., Inc., 767 F.3d 1229, 1247 (11th Cir. 2014). In determining
whether the same cause of action is presented in separate lawsuits, courts compare
“‘the factual issues that must be resolved in the second suit . . . with the issues
explored in the first case.’” Sophocleus, 605 F. Supp. 2d at 1219 (quoting Pleming
v. Universal-Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998)).
Griffin’s criminal proceeding, the facts at issue concerned whether Mr. Griffin
knowingly possessed the type of obscene material prohibited by § 13A-12-192(b).
The state court did not explore issues related to the constitutionality of § 13A-12192(b). In the instant action, the Court need not resolve factual issues related to
whether Mr. Griffin knowingly possessed obscene material. Instead, the Court is
concerned only with whether § 13A-12-192(b) places an unconstitutional
restriction on free speech. Because the facts germane to that analysis do not share
a common nucleus with those underlying Mr. Griffin’s conviction, Mr. Griffin
does not assert the same cause of action here as that adjudicated in state criminal
court, and the doctrine of claim preclusion does not bar his constitutional
challenge. See Baloco, 767 F.3d at 1246–47; Sophocleus, 605 F. Supp. 2d at 1219.
Section 13A-12-192(b) provides that “[a]ny person who knowingly
possesses any obscene matter that contains a visual depiction of a person under the
age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse,
sexual excitement, masturbation, genital nudity, or other sexual conduct shall be
guilty of a class C felony.” ALA. CODE § 13A-12-192(b). Mr. Griffin argues that
§ 13A-12-192(b) is unconstitutionally overbroad because, in addition to
prohibiting the possession of child pornography, it prohibits the possession of
obscene depictions of 16-year-olds, whom Mr. Griffin contends are adults under
Alabama law. (Doc. 30, pp. 8, 12–13). Mr. Griffin also argues that § 13A-12192(b) is unconstitutionally vague because its reference to persons “under the age
of 17 years” makes it unclear whether the statute prohibits the possession of
obscenity or child pornography. (Doc. 30, pp. 8–9). The State of Alabama argues
that Mr. Griffin has failed to state a plausible claim for relief. (Doc. 17, pp. 6–10).
Mr. Griffin correctly notes that there is a distinction between obscenity and
child pornography. The United States Supreme Court has held that a state may not
criminalize the mere possession of obscene material, but it may criminalize the
possession of child pornography. Compare Osborne v. Ohio, 495 U.S. 103, 108,
111 (1990) (“[W]e find that Ohio may constitutionally proscribe the possession
and viewing of child pornography.”), with Stanley v. Georgia, 394 U.S. 557, 568
(1969) (“We hold that the First and Fourteenth Amendments prohibit making mere
private possession of obscene material a crime.”). In Osborne, the Supreme Court
explained that there are compelling interests not present in the context of obscenity
that justify a proscription on the possession of child pornography. Osborne, 495
U.S. at 108–11 (discussing the state’s interest in protecting minors from abuse and
Mr. Griffin does not challenge Osborne’s holding. Indeed, Mr. Griffin
agrees with the general societal consensus that child pornography is “deplorable.”
(Doc. 30, p. 9). Instead, Mr. Griffin argues that, because the age at which an
individual may consent to sexual relations or marriage in Alabama is sixteen,
sixteen also is the age at which an individual becomes an adult under Alabama law
for purposes of defining the line between obscenity and child pornography. (Doc.
30, p. 13); see ALA. CODE §§13A-6-70(c), 30-1-4. Thus, Mr. Griffin contends, §
13A-12-192(b) criminalizes not only the possession of child pornography but also
the possession of obscene depictions of consenting adults, and the statute,
therefore, unconstitutionally restricts his First Amendment right to receive
information and ideas. (Doc. 13, p. 1; Doc. 30, p. 13); see also Stanley, 394 U.S. at
The Court does not agree that § 13A-12-192(b) criminalizes the possession
of obscene depictions of adults. The legislature’s decision to establish sixteen as
the age of consent in § 13A-6-70(c) and § 30-1-4 does not amount to an intention
on the part of the legislature to define sixteen as the age of adulthood for all
purposes. As the Supreme Court has noted, the regulation of child pornography
implicates a unique set of interests. Osborne, 495 U.S. at 108–11. These interests
differ from those underlying Alabama’s laws regarding marriage and consensual
sex. Moreover, to the extent that a universally applicable definition of adulthood
exists under Alabama law, it can be found in § 26-1-1, which defines the age of
majority as nineteen years old.
ALA. CODE § 26-1-1.1
Thus, the Alabama
Legislature’s inclusion of 16-year-olds within § 13A-12-192(b)’s prohibitive
sweep does not amount to a ban on the possession of obscene depictions of adults.
According to Mr. Griffin, the Supreme Court held in Ashcroft v. Free Speech
Coalition that a state may not expand the definition of a child to include something
See also Alabama Code § 12-15-102(1), which defines an “adult” as “[a]n individual 19 years
of age or older[,]” and § 12-15-102(3), which defines a “child” as “[a]n individual under the age
of 18 years.” ALA. CODE §§ 12-15-102(1), (3). An 18-year-old, according to § 12-15-102(18),
is a “minor.” ALA. CODE § 12-15-102(18).
other than “an actual child.” (Doc. 30, pp. 12–13); see Ashcroft v. Free Speech
Coal., 535 U.S. 234 (2002). Mr. Griffin argues that § 13A-12-192(b) expands
Alabama’s definition of a child to include 16-year-olds and thereby criminalizes
the possession of images that were produced without using actual children. (Doc.
30, pp. 12–13). Mr. Griffin’s argument is artful but unpersuasive. In Ashcroft, the
Supreme Court determined that the Child Pornography Prevention Act of 1996
(CPPA) was unconstitutionally overbroad because it criminalized the possession of
computer-generated, “virtual” child pornography that was “produced without using
any real children.” Ashcroft, 535 U.S. at 239, 241. As discussed above, a 16-yearold human being is an actual child for purposes of § 13A-12-192(b), regardless of
the legislature’s choice to establish sixteen as the age at which a person may
consent to sexual relations or marriage. Therefore, Ashcroft is inapposite.
Furthermore, even if Mr. Griffin were correct that a child becomes an adult
in Alabama on his or her sixteenth birthday, § 13A-12-192(b) does not, as Mr.
Griffin contends, “overreach” to an unconstitutional degree. (Doc. 30, p. 13). As
the Supreme Court explained in Osborne:
[W]here a statute regulates expressive conduct, the scope of the
statute does not render it unconstitutional unless its overbreadth is not
only real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep. Even where a statute at its margins
infringes on protected
inappropriate if the remainder of the statute . . . covers a whole range
of easily identifiable and constitutionally proscribable . . . conduct.”
Osborne, 495 U.S. at 111 (internal citations and quotation marks omitted). Section
13A-12-192(b)’s prohibition of the possession of sexual depictions of persons
under the age of sixteen—i.e., child pornography—is plainly legitimate. See id.
To the extent that the provision infringes on protected expression by also
prohibiting the possession of depictions of 16-year-olds engaged in sexual conduct,
the infringement is marginal. Thus, even if § 13A-12-192(b)’s overbreadth is real,
it is not substantial. For these reasons, the Court finds that § 13A-12-192(b) is not
Mr. Griffin argues that, because § 13A-12-192(b) treats persons under
seventeen as children while other statutes suggest that sixteen is the age at which
one ceases to be a child, it is impossible for him to know whether § 13A-12-192(b)
proscribes the possession of obscenity or of child pornography. (Doc. 30, p. 9).
Thus, Mr. Griffin argues, the statute is unconstitutionally vague. (Doc. 30, p. 9).2
Regardless of the label one might use to describe it, § 13A-12-192(b) is not
vague. “A statute is impermissibly vague if either: (1) it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits, or (2) it authorizes or even encourages arbitrary and discriminatory
enforcement.” Dana’s R.R. Supply v. Atty. Gen., Fla., 807 F.3d 1235, 1257 (11th
Mr. Griffin does not argue that § 13A-12-192(b) authorizes or encourages arbitrary and
discriminatory enforcement. Rather, his vagueness argument consists exclusively of his
contention that § 13A-12-192(b) is “too vague in what type of material we’re talking about” and
that, as a result, he is “not able to know the nature of what the charge is.” (Doc. 30, pp. 8–9).
Cir. 2015) (internal citation and quotation marks omitted). Section 13A-12-192(b)
provides precise notice of what conduct it prohibits: the knowing possession of
“obscene matter that contains a visual depiction of a person under the age of 17
years engaged in . . . sexual conduct.” ALA. CODE § 13A-12-192(b). Assuming
that Mr. Griffin mistakenly inferred from other Alabama statutes that a 16-year-old
is an adult for purposes of identifying and refraining from the possession of child
pornography, his misunderstanding does not establish that a person of ordinary
intelligence would not know, after reading § 13A-12-192(b), that it was illegal to
knowingly possess obscene depictions of 16-year-olds engaged in sexual conduct.
Because the State of Alabama is free to prohibit the possession of such images (see
supra pp. 7–9), the Court finds that § 13A-12-192(b) is a valid restriction on
expressive conduct and that Mr. Griffin has failed to state a claim for relief under
For the reasons discussed above, the Court GRANTS the State of
Alabama’s motion to dismiss Mr. Griffin’s amended complaint. (Doc. 17). For
the same reasons, the Court finds that it would be futile for Mr. Griffin to amend
In addition to its arguments with respect to the Rooker-Feldman doctrine, claim preclusion, and
the merits of Mr. Griffin’s claims, the State of Alabama argues that the Court should dismiss Mr.
Griffin’s amended complaint because the state is immune from suit under the Eleventh
Amendment. (Doc. 17, pp. 10–11). Because the Court can resolve the State of Alabama’s
motion to dismiss on the merits of Mr. Griffin’s claims, the Court does not consider whether the
State of Alabama is immune from this lawsuit under the Eleventh Amendment.
his complaint to formally assert the arguments he raised during the telephone
conference held on January 5, 2017. (See Doc. 30).4 Accordingly, the Court
DISMISSES Mr. Griffin’s claims against the State of Alabama WITH
DONE and ORDERED this January 26, 2017.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
During the conference, Mr. Griffin clarified and refined the overbreadth and vagueness
arguments that he asserted in his amended complaint. (See generally Doc. 30). Having reviewed
the transcript of the conference, the Court finds that a second amended complaint that included
the arguments Mr. Griffin raised at the conference would still fail to state a claim upon which
relief can be granted.
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