Barber v. Vance et al
Filing
158
OPINION and ORDER - The Court ADOPTS IN PART Judge Acosta's Findings and Recommendation, ECF 131 . Plaintiff's motion for a declaratory judgment on his first claim for relief (ECF 40 ) is DENIED. The State Defendants motion to dis miss (ECF 56 ) is GRANTED IN PART. It is granted with respect to Plaintiff's first claim for relief, which is dismissed without prejudice. The Court reserves ruling on the remainder of the State Defendant' motion to dismiss. Defendant Vance's special motion to strike under Oregon Revised Statutes § 31.150 (ECF 85 ) is GRANTED. Plaintiff's claims against Defendant Vance are dismissed without prejudice. Signed on 9/26/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BENJAMIN BARBER,
Plaintiff,
Case No. 3:16-cv-2105-AC
OPINION AND ORDER
v.
MEAGAN VANCE, et al.,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on August 25, 2017. ECF 131. Judge Acosta recommended that Plaintiff’s motion for
declaratory judgment on his first claim for relief be denied, Defendant Vance’s motion to strike
the claims against her be granted, and the State Defendants’ motion to dismiss Plaintiff’s first
claim for relief1 be granted.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
1
Judge Acosta will address the State Defendants’ motion to dismiss Plaintiff’s second
through sixth claims for relief in a separate findings and recommendation.
PAGE 1 – OPINION AND ORDER
Plaintiff timely filed an objection. ECF 138, 139. Plaintiff also filed a request that the
Court take judicial notice of Younger v. Harris, 401 U.S. 37 (1971) and 17 U.S.C. § 511.
ECF 142, 144. Although the Court can consider case law and statutes without taking “judicial
notice” of them, the Court grants Plaintiff’s request for judicial notice.
Plaintiff argues that Judge Acosta erred in finding that Plaintiff is barred by the doctrines
articulated in Younger and Heck v. Humphrey, 512 U.S. 477 (1994), from pursuing his first claim
for relief, erred in noting that Plaintiff did not provide evidence that he owned the copyright of
the relevant pornographic material, and erred in concluding that Defendant Vance is protected by
Oregon’s Anti-SLAPP statute. The Court considers de novo the objected-to portions of the
Findings and Recommendation.
The Court has previously explained why Younger abstention applies in this case, and
Judge Acosta adopted that reasoning. Federal courts must still dismiss a case if the underlying
state court case was pending at the time the federal case was originally filed, even if, at the time
the court dismisses a claim under Younger, the state court proceedings have completed (which
may or may not be the situation with Plaintiff’s state court appeals). See Beltran v. State of Cal.,
871 F.2d 777, 782 (9th Cir. 1988) (“Although the state court proceedings were completed by the
time the district court granted summary judgment, and an abstention order in this case may result
simply in the appellees refiling their federal complaint, this outcome is required by Younger.
Where Younger abstention is appropriate, a district court cannot refuse to abstain, retain
jurisdiction over the action, and render a decision on the merits after the state proceedings have
ended. To the contrary, Younger abstention requires dismissal of the federal action.” (emphasis
in original)); see also Gilbertson v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004) (“The critical
date for purposes of deciding whether abstention principles apply is the date the federal action is
PAGE 2 – OPINION AND ORDER
filed. See, e.g., Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987) (noting that the question
is not whether the state proceedings are still ongoing, but whether they were underway before
initiation of the federal proceedings).”). Plaintiff’s state court criminal proceedings were pending
at the time this case was filed, and Younger abstention applies.
The Court sees no reason to change its previous reasoning and analysis. Plaintiff argues
that his case warrants an exception to Younger because Plaintiff is being harassed by the State
Defendants. Plaintiff argues that he is being targeted because he is the “Rosa Parks of men’s
rights,” which are not “popular.” Plaintiff asserts that his situation is analogous to Dombrowski v.
Pfister, 380 U.S. 479 (1965), and merely requires replacing “negro with men” and “KKK with
feminists” and then he is suffering a similar pattern of harassment by the State. The Court rejects
Plaintiff’s argument and adopts this portion of the Findings and Recommendation, with the
exception of the recommendation that Plaintiff’s first claim for relief be dismissed with
prejudice. Claims dismissed under Younger are dismissed without prejudice. See Howard v. City
of Milton, 63 F. App’x 978 (9th Cir. 2003) (“However, when Younger abstention applies, it is
appropriate to dismiss the action without prejudice because the court has not addressed the merits
of the action.”).2
The Court has also reviewed de novo Judge Acosta’s discussion regarding the application
of Heck. The Court adopts this portion of the Findings and Recommendation, with the exception
of the recommendation to dismiss with prejudice. Claims dismissed under Heck are dismissed
without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (noting
2
Dismissal without prejudice does not mean that Plaintiff can reassert in this case his
claim that his conviction or the underlying Oregon statute is unconstitutional. It merely means
that this Opinion and Order will not preclude him from making such a claim in state court or,
after he exhausts his state court appeals, that it will not preclude him from filing a new case in
federal court making such a claim.
PAGE 3 – OPINION AND ORDER
that dismissals under Heck are “required to be without prejudice so that [the plaintiff] may
reassert his claims if he ever succeeds in invalidating his conviction”); see also Valdez v. United
States, 651 F. App’x 626, 627 (9th Cir. 2016) (reversing district court for dismissing claims
under Heck with prejudice and remanding with instructions to dismiss without prejudice).3
In recommending that Defendant Vance’s motion to strike be granted, Judge Acosta
noted, among other reasons, that Plaintiff has not offered evidence in support of his contention
that he owns the copyright. Plaintiff objects that Judge Acosta ignored the evidence in the record
of Plaintiff’s copyright submissions. Plaintiff provided to the Court, after the Findings and
Recommendation was issued, a copy of email receipts from the Copyright Office. ECF 136-1-2.
These receipts, however, state that Plaintiff’s “submission is not complete until you upload or
mail the material you are registering.” Thus, they are not evidence of copyright ownership.
Further, it does not appear that this evidence was provided to Judge Acosta in opposing any of
the pending motions. Moreover, even if Plaintiff proved copyright ownership, that would not be
dispositive of Defendant Vance’s motion to strike under Oregon’s anti-SLAPP statute. As
Judge Acosta found, Vance’s alleged actionable communications were made with regard to
Plaintiff’s criminal proceedings and Vance is entitled to absolute immunity for those statements
and they are protected under Oregon Revised Statutes § 31.150. Accordingly, the Court adopts
this portion of the Findings and Recommendation.
For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S.
3
Dismissal without prejudice does not mean that Plaintiff can reassert in this case a claim
for money damages that would require the Court to find Plaintiff’s underlying criminal
conviction in error or unconstitutional. It merely means that if at some point in the future
Plaintiff obtains relief in invalidating his conviction, then this Opinion and Order will not
preclude Plaintiff from asserting such a claim.
PAGE 4 – OPINION AND ORDER
140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require
a district judge to review a magistrate’s report to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must
review de novo magistrate’s findings and recommendations if objection is made, “but not
otherwise”). Although in the absence of objections no review is required, the Magistrates Act
“does not preclude further review by the district judge[] sua sponte . . . under a de novo or any
other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate’s
recommendations for “clear error on the face of the record.”
For those portions of Judge Acosta’s Findings and Recommendation to which neither
party has objected, this Court follows the recommendation of the Advisory Committee and
reviews those matters for clear error on the face of the record. No such error is apparent.
CONCLUSION
The Court ADOPTS IN PART Judge Acosta’s Findings and Recommendation,
ECF 131. Plaintiff’s motion for a declaratory judgment on his first claim for relief (ECF 40) is
DENIED. The State Defendants motion to dismiss (ECF 56) is GRANTED IN PART. It is
granted with respect to Plaintiff’s first claim for relief, which is dismissed without prejudice. The
Court reserves ruling on the remainder of the State Defendants’ motion to dismiss. Defendant
Vance’s special motion to strike under Oregon Revised Statutes § 31.150 (ECF 85) is
GRANTED. Plaintiff’s claims against Defendant Vance are dismissed without prejudice.
IT IS SO ORDERED.
DATED this 26th day of September, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 5 – OPINION AND ORDER
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