Barber v. Vance et al
Filing
23
ORDER - Plaintiff's Renewed Motion for a Temporary Restraining Order (ECF 20 ) is DENIED. Signed on 12/5/2016 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 RENEWED
MOTION FOR TEMPORARY
RESTRAINING ORDER
MEAGAN ALYSSA VANCE, STATE OF
OREGON, MARIE ATWOOD,
Defendants.
Michael H. Simon, District Judge.
Plaintiff filed this action pro se,1 alleging that the State of Oregon is prosecuting Plaintiff
under a criminal statute that Plaintiff alleges violates his First Amendment rights, as well as his
rights under the federal Copyright Act.2 Plaintiff seeks money damages and declaratory and
1
Plaintiff previously requested the appointment of pro bono counsel (ECF 3), which the
Court allowed. The Court then requested the appointment of several pro bono attorneys, none of
whom have accepted the appointment. The most recent appointment was requested by the Court
on November 29, 2016, but that attorney has not yet indicated whether he will accept this
representation. On December 2, 2016, Plaintiff filed pro se his renewed motion, seeking to
enjoin his state criminal conviction and judgment. Because his state court incarceration is
ongoing, the Court will rule on Plaintiff’s pending motion without the assistance of either
counsel for the Plaintiff or counsel for Defendants, who have not yet appeared.
2
17 U.S.C. §§ 101, et seq.
PAGE 1 – ORDER
injunctive relief. Plaintiff previously filed a motion for a temporary restraining order to enjoin
his state court prosecution. The Court denied that motion based on the Younger3 abstention
doctrine, which requires a federal court to abstain from considering a plaintiff’s claims for
declaratory and injunctive relief against a pending state criminal prosecution.
Plaintiff now renews his motion for a temporary restraining order, arguing that because
he has been convicted, his state court proceeding is no longer pending for purposes of Younger
abstention and the Court has jurisdiction to enjoin Plaintiff’s state court criminal conviction.
Plaintiff is mistaken. First, the date for which pending state court action is considered for
Younger abstention is the date the federal complaint was filed, not whether at some later point
the state proceedings ended. See 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 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).”).
Second, even if the termination of state court proceedings after a federal complaint was
filed were to end the application of Younger abstention, a plaintiff must exhaust all of his state
court appeals before Younger abstention will no longer 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
3
Younger v. Harris, 401 U.S. 37 (1971).
PAGE 2 – ORDER
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). Here,
Plaintiff has not exhausted his state court appeals.
CONCLUSION
Plaintiff’s Renewed Motion for a Temporary Restraining Order (ECF 20) is DENIED.
IT IS SO ORDERED.
DATED this 5th day of December, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 3 – ORDER
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