Barber v. Vance et al

Filing 118

ORDER - Plaintiff's Emergency Motion for a Temporary Restraining Order (ECF 116 ) is DENIED. Signed on 7/25/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BENJAMIN BARBER,
Plaintiff,
v.

Case No. 3:16-cv-2105-AC
ORDER DENYING THIRD MOTION
FOR TEMPORARY RESTRAINING
ORDER

MEAGAN ALYSSA VANCE, STATE
OF OREGON, and MARIE ATWOOD,
Defendants.

Michael H. Simon, District Judge.
Plaintiff filed this action pro se.1 Plaintiff alleges that the State of Oregon is prosecuting
Plaintiff under a criminal statute that Plaintiff asserts violates his First Amendment rights, as
well as his rights under the federal Copyright Act.2 Plaintiff previously filed two motions for
restraining orders, seeking to enjoin his state court criminal prosecution and trial. The Court
denied Plaintiff’s first motion, brought before his trial, based on the Younger abstention
1

Plaintiff previously requested the appointment of pro bono counsel (ECF 3), which the
Court allowed. The Court requested several attorneys from the Court’s pro bono panel to provide
voluntary assistance to Plaintiff, none of whom accepted the appointment. Accordingly, Plaintiff
is proceeding pro se.
2

17 U.S.C. §§ 101, et seq.

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doctrine,3 which requires a federal court to abstain from considering a plaintiff’s claims for
declaratory and injunctive relief against a pending state criminal prosecution. ECF 9. The Court
denied Plaintiff’s second motion, brought after his conviction, also based on Younger abstention,
because the application of that doctrine is considered as of the date the federal complaint is filed
and because a plaintiff must exhaust all available state court appeals before Younger abstention
no longer applies. ECF 23.
Plaintiff now moves for a third time for injunctive relief, seeking an “emergency”
restraining order to enjoin the state court’s recent order that Plaintiff’s digital devices be
destroyed. ECF 116. For the same reasons the Court denied Plaintiff’s previous motions, the
Court denies this motion. Plaintiff must exhaust all available state court appeals before Younger
abstention will not apply. As the Supreme Court has explained:
For Younger purposes, the State’s trial-and-appeals process is
treated as a unitary system, and for a federal court to disrupt its
integrity by intervening in mid-process would demonstrate a lack
of respect for the State as sovereign. For the same reason, a party
may not procure federal intervention by terminating the state
judicial process prematurely—forgoing the state appeal to attack
the trial court’s judgment in federal court. “[A] necessary
concomitant of Younger is that a party [wishing to contest in
federal court the judgment of a state judicial tribunal] must exhaust
his state appellate remedies before seeking relief in the District
Court.”
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989)
(quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975)) (alterations in original). Plaintiff
has not exhausted his state court appeals concerning the challenged state court order.
///
///

3

Younger v. Harris, 401 U.S. 37 (1971).

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CONCLUSION
Plaintiff’s Emergency Motion for a Temporary Restraining Order (ECF 116) is DENIED.
IT IS SO ORDERED.
DATED this 25th day of July, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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