Backpage.com et al v. McKenna et al

Filing 72

ORDER granting dft Hauge's 24 Motion to Dismiss; granting dft Hauge's 37 Motion to Dismiss for Failure to State a Claim by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BACKPAGE.COM, LLC et al.,

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Plaintiffs,

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CASE NO. C12-954 RSM
ORDER GRANTING DEFENDANT
HAUGE’S MOTIONS TO DISMISS

v.
ROB MCKENNA, Attorney General for
Washington State et al.,

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Defendants.
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I. INTRODUCTION
This matter comes before the Court upon Defendant Russell D. Hauge’s Motions to
Dismiss (Dkt. ## 24, 37). For the reasons set forth below, Defendant’s motions are GRANTED.

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II. BACKGROUND
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Plaintiffs challenged the constitutionality of Senate Bill 6251 prior to its scheduled
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enforcement date (Dkt. #1). The Complaint named as Defendants Washington State Attorney
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General Rob McKenna and 39 of the state’s prosecuting attorneys. On July 27, 2012, the Court
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granted the Motion for Preliminary Injunction to enjoin enforcement of SB 6251 (Dkt. #69).
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ORDER GRANTING DEFENDANT HAUGE’S MOTIONS TO DISMISS - 1

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Senate Bill 6251 makes it a felony to knowingly publish, disseminate, or display, or to

2 “directly or indirectly” cause content to be published, disseminated or displayed if it contains a
3 “depiction of a minor” and any “explicit or implicit offer” of sex for “something of value.”
4 Under the proposed law it is not a defense that the defendant did not know the age of the person
5 depicted and the defendant may not rely on representation by, or the apparent age of, the person
6 depicted. Though scheduled to go into effect on June 7, 2012, the Court ordered a temporary
7 restraining order on June 5, 2012, which remained in effect until the Court issued its order
8 granting a preliminary injunction. SB 6251 has never been enforced against Plaintiffs.
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Plaintiffs First Amended Complaint sets forth three causes of action under 42 U.S.C. §

10 1983: (1) Violation of Communications Decency Act; (2) Violation of the First and Fourteenth
11 Amendments of the Constitution; and (3) Violation of the Commerce Clause of the Constitution
12 (Dkt. #28, ¶ 1). Defendant Kitsap County Prosecuting Attorney Russell D. Hauge moved for
13 dismissal of the 42 U.S.C. § 1983 claims against him pursuant to Fed. R. Civ. P. 12(b)(6).
14 Defendant Hauge challenges only the § 1983 claims against him; he does not dispute Plaintiffs’
15 right to challenge, pre-enforcement, the constitutionality of SB 6251, nor does he seek dismissal
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III. DISCUSSION

18 A. Standard of Review
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In considering a Rule 12(b)(6) motion to dismiss, the Court must determine whether the

20 plaintiff has alleged sufficient facts to state a claim for relief which is “plausible on its face.”
21 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
22 U.S. 544, 570 (2007)). A claim is facially plausible if the plaintiff has pled “factual content that
23 allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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ORDER GRANTING DEFENDANT HAUGE’S MOTIONS TO DISMISS - 2

1 alleged.” Id. (citing Twombly, 550 U.S. 556). In making this assessment, the Court accepts all
2 facts alleged in the complaint as true, and makes all inferences in the light most favorable to the
3 non-moving party. Baker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009)
4 (internal citations omitted). The Court is not, however, bound to accept the plaintiff’s legal
5 conclusions. Iqbal, 129 S. Ct. at 1949-50. While detailed factual allegations are not necessary,
6 the plaintiff must provide more than “labels and conclusions” or a “formulaic recitation of the
7 elements of a cause of action.” Twombly, 550 U.S. at 555.
8 B. 42 U.S.C. § 1983
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“Section 1983 provides a tort remedy against ‘[e]very person who, under color of [state

10 law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of
11 any rights, privileges, or immunities secured by the Constitution and laws.’” Lacey v. Maricopa
12 Cnty., 2012 WL 3711591 *6 (9th Cir. August 29, 2012) (quoting 42 U.S.C. §1983). Therefore,
13 to state a viable claim under § 1983, a plaintiff must allege the violation of a right secured by the
14 Constitution or laws of the United States, and show that the violation was committed by a person
15 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
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The Court granted a temporary restraining order, followed by a preliminary injunction to

17 enjoin any application of SB 6251 prior to the date on which the bill was to be enforced. As the
18 bill has never been enforced, Plaintiffs cannot, as of yet, have suffered any violation of a
19 constitutionally protected right. Plaintiffs may endure a violation of some protected right if SB
20 6251 is enforced against them at some future date. But Plaintiffs fail to direct the Court to any
21 precedent that stands for the proposition that a § 1983 claim is viable in the absence of an actual
22 violation of a protected right. Plaintiffs allege no facts from which the Court can conclude that
23 Defendant Hauge prosecuted Plaintiffs under the SB 6251 or that he caused a deprivation of a
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ORDER GRANTING DEFENDANT HAUGE’S MOTIONS TO DISMISS - 3

1 protected right while acting under color of state law. Accordingly, Plaintiffs’ § 1983 claims
2 against Defendant Hauge must be dismissed.
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IV. CONCLUSION
Having reviewed the relevant motions, responses, and replies thereto, and the remainder

5 of the record, the Court hereby finds and ORDERS:
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(1) Defendant’s Motions to Dismiss (Dkt. ## 24, 37) are GRANTED, as set out above.

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(2) The Clerk is directed to forward a copy of this Order to plaintiffs and to all counsel

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of record.

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Dated September 18, 2012.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING DEFENDANT HAUGE’S MOTIONS TO DISMISS - 4