6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 DANIEL R. GRIFFIN, CASE NO. C21-5044 RSM
9 Plaintiff, ORDER
10 v.
11 ROBERT S. FERGUSON,
12 Defendant.
13 14 This matter is before the Court for consideration of the Report and Recommendation 15 (“R&R”) of United States Magistrate Judge Brian A. Tsuchida recommending that this action be 16 dismissed with prejudice. Dkt. #5. Plaintiff has objected to the R&R and contends that the action 17 should not be dismissed because his action is not barred by prior decisions of this Court and 18 because he can cure any remaining deficiencies by filing an amended complaint. Dkt. #9. For 19 the following reasons, the Court dismisses Plaintiff’s claims without prejudice. 20 Plaintiff Daniel R. Griffin, a Washington State prisoner, filed this action alleging that the 21 Defendant, Bob S. Ferguson, Washington State Attorney General, is unlawfully chilling speech 22 through enforcement of section 9.68A.090 of the Revised Code of Washington, which 23 criminalizes communication with minors for immoral purposes. Dkt. #1 at 4. Plaintiff argues 24 1 that the statute is presumptively unconstitutional and seeks injunctive relief. Id. at 5–6. Proper 2 consideration of this action requires consideration of both procedural and substantive issues. 3 Procedurally, Plaintiff did not pay the filing fee upon filing of this action and did not 4 include an application to proceed in forma pauperis. Dkt. #1. Concluding that Plaintiff wished 5 to proceed in forma pauperis, the Clerk mailed Plaintiff a copy of the necessary application
6 forms. Dkt. #3. With Plaintiff presumed to be proceeding in forma pauperis, Judge Tsuchida 7 screened the matter under 28 U.S.C. § 1915A. Dkt. #5 at 1. Upon review, Judge Tsuchida 8 concluded that Plaintiff’s claim was frivolous and should be dismissed under 28 U.S.C. § 1915A. 9 Id. 10 However, on the Court’s review, the Court believes that Plaintiff intends to pay the filing 11 fee for this action. After receiving the IFP application from the Clerk, Plaintiff wrote and 12 indicated that he “included a $402 money order along with the complaint.” Dkt. #4 at 1. Upon 13 docketing of that letter, the Clerk indicated that an extensive search did not lead to discovery of 14 a prior money order from Plaintiff. February 4, 2021 Docket Entry. Plaintiff again reiterated
15 his belief that he had already submitted payment. Dkt. #6. Further, Plaintiff provided, along 16 with his objections, a “Request to Transfer Funds” on a Washington Department of Corrections 17 form indicating that he had requested a payment of $402 to the United States District Court on 18 December 30, 2020. Dkt. #9-2 at 1. Plaintiff’s filing fee remains unpaid and Plaintiff has not 19 updated the Court on the issue for nearly a month. 20 Substantively, Plaintiff’s complaint also suffers from deficiencies. The R&R notes that 21 this Court has already rejected similar challenges to section 9.68A.090 of the Revised Code of 22 Washington in Schoening v. McKenna, 636 F. Supp. 2d 1154, 1156 (W.D. Wash. 2009), a fact 23 also recognized by Plaintiff. Dkt. #1 at 5–6. Because of the prior case law, Judge Tsuchida 24 1 concluded that Plaintiff’s challenge was precluded by the prior decision in Schoening. Dkt. #5 2 at 2. 3 In his objections, Plaintiff maintains that Schoening does not preclude his claims because 4 he seeks to premise his action on separate legal theories than were considered in Schoening. Dkt. 5 #9 at 6–7 (indicating that Schoening dealt with “a hypothetical concern that [the statute] ‘may
6 prohibit speech about sexual health and education”). Plaintiff’s theory is that because the statute 7 uses “immoral purposes” as the standard by which to judge language, the statue is an 8 unconstitutional “viewpoint” restriction on speech because “‘immorality’ is definately [sic] a 9 viewpoint.” Dkt. #1 at 7–21. Plaintiff’s assertion is called into question by the fact that both his 10 action and Schoening challenged the statute on overbreadth grounds and the Court shares the 11 R&R’s doubts as to the viability of Plaintiff’s claims.1 12 A more significant substantive hurdle to Plaintiff’s complaint is Judge Tsuchida’s 13 explanation that Plaintiff’s claims appears precluded under Heck v. Humphrey, 512 U.S. 477 14 (1994). That case “precludes a prisoner’s § 1983 claim that, if successful, would invalidate a
15 conviction or sentence ‘where that conviction [or sentence] has not been reversed, expunged or 16
17 1 Schoening further calls Plaintiff’s claims into question:
18 The Washington Supreme Court has construed RCW 9.68A.090 to prohibit communicating with children with “the predatory purpose of promoting their 19 exposure to and involvement in sexual misconduct.” Washington v. McNallie, 120 Wash.2d 925, 931–32, 846 P.2d 1358, 1363 (1993). Plaintiff's concerns that the 20 term “immoral purposes” could be the basis of a prosecution of—for example— a school nurse who advised a pregnant teenager about abortion options are 21 unfounded, because the scope of the term “immoral purposes” has been limited to the category “sexual misconduct.” McNallie, 846 P.2d at 1362 (noting that the 22 controlling opinion in State v. Schimmelpfennig, 92 Wash.2d 95, 594 P.2d 442 (1979), supports this interpretation). 23
Schoening, 636 F. Supp. 2d at 1157. 24 1 called into question by issuance of a writ of habeas corpus.’” Dkt. #5 at 3 (quoting Heck, 512 at 2 486–87). Because Plaintiff sought to vacate all convictions under the communication for 3 immoral purposes statute, including his own, Judge Tsuchida concluded that Plaintiff’s action 4 was barred by Heck. 5 In an attempt to salvage his complaint, Plaintiff indicates that he wishes to abandon his
6 own release. Dkt. #9 at 7. But serious questions remain as to whether this alone would be 7 adequate. See Heck, 512 U.S. at 487 (in § 1983 actions, “the district court must consider whether 8 a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or 9 sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that 10 the conviction or sentence has already been invalidated”); id. at 489 (“Even a prisoner who has 11 fully exhausted available state remedies has no cause of action under § 1983 unless and until the 12 conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of 13 habeas corpus.”). 14 Intermixed with these substantial legal questions, Plaintiff indicates that he has lacked
15 adequate access to legal resources because of COVID-19. Such restrictions served as good cause 16 for an extension of Plaintiff’s deadline for submitting objections to the R&R. See Dkts. #7 and 17 #8. But even then, Plaintiff recounts ongoing difficulties obtaining the materials he believes are 18 necessary to explore his claims and consider the effect of Heck. Dkt. #9 at 2 (Plaintiff indicating 19 he is unable to provide adequate legal support for his positions). Along similar lines, Plaintiff 20 requests that he be granted leave to refine his complaint. Id. at 7 (Plaintiff indicating that he 21 “could submit a fresh new complaint”).
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 DANIEL R. GRIFFIN, CASE NO. C21-5044 RSM
9 Plaintiff, ORDER
10 v.
11 ROBERT S. FERGUSON,
12 Defendant.
13 14 This matter is before the Court for consideration of the Report and Recommendation 15 (“R&R”) of United States Magistrate Judge Brian A. Tsuchida recommending that this action be 16 dismissed with prejudice. Dkt. #5. Plaintiff has objected to the R&R and contends that the action 17 should not be dismissed because his action is not barred by prior decisions of this Court and 18 because he can cure any remaining deficiencies by filing an amended complaint. Dkt. #9. For 19 the following reasons, the Court dismisses Plaintiff’s claims without prejudice. 20 Plaintiff Daniel R. Griffin, a Washington State prisoner, filed this action alleging that the 21 Defendant, Bob S. Ferguson, Washington State Attorney General, is unlawfully chilling speech 22 through enforcement of section 9.68A.090 of the Revised Code of Washington, which 23 criminalizes communication with minors for immoral purposes. Dkt. #1 at 4. Plaintiff argues 24 1 that the statute is presumptively unconstitutional and seeks injunctive relief. Id. at 5–6. Proper 2 consideration of this action requires consideration of both procedural and substantive issues. 3 Procedurally, Plaintiff did not pay the filing fee upon filing of this action and did not 4 include an application to proceed in forma pauperis. Dkt. #1. Concluding that Plaintiff wished 5 to proceed in forma pauperis, the Clerk mailed Plaintiff a copy of the necessary application
6 forms. Dkt. #3. With Plaintiff presumed to be proceeding in forma pauperis, Judge Tsuchida 7 screened the matter under 28 U.S.C. § 1915A. Dkt. #5 at 1. Upon review, Judge Tsuchida 8 concluded that Plaintiff’s claim was frivolous and should be dismissed under 28 U.S.C. § 1915A. 9 Id. 10 However, on the Court’s review, the Court believes that Plaintiff intends to pay the filing 11 fee for this action. After receiving the IFP application from the Clerk, Plaintiff wrote and 12 indicated that he “included a $402 money order along with the complaint.” Dkt. #4 at 1. Upon 13 docketing of that letter, the Clerk indicated that an extensive search did not lead to discovery of 14 a prior money order from Plaintiff. February 4, 2021 Docket Entry. Plaintiff again reiterated
15 his belief that he had already submitted payment. Dkt. #6. Further, Plaintiff provided, along 16 with his objections, a “Request to Transfer Funds” on a Washington Department of Corrections 17 form indicating that he had requested a payment of $402 to the United States District Court on 18 December 30, 2020. Dkt. #9-2 at 1. Plaintiff’s filing fee remains unpaid and Plaintiff has not 19 updated the Court on the issue for nearly a month. 20 Substantively, Plaintiff’s complaint also suffers from deficiencies. The R&R notes that 21 this Court has already rejected similar challenges to section 9.68A.090 of the Revised Code of 22 Washington in Schoening v. McKenna, 636 F. Supp. 2d 1154, 1156 (W.D. Wash. 2009), a fact 23 also recognized by Plaintiff. Dkt. #1 at 5–6. Because of the prior case law, Judge Tsuchida 24 1 concluded that Plaintiff’s challenge was precluded by the prior decision in Schoening. Dkt. #5 2 at 2. 3 In his objections, Plaintiff maintains that Schoening does not preclude his claims because 4 he seeks to premise his action on separate legal theories than were considered in Schoening. Dkt. 5 #9 at 6–7 (indicating that Schoening dealt with “a hypothetical concern that [the statute] ‘may
6 prohibit speech about sexual health and education”). Plaintiff’s theory is that because the statute 7 uses “immoral purposes” as the standard by which to judge language, the statue is an 8 unconstitutional “viewpoint” restriction on speech because “‘immorality’ is definately [sic] a 9 viewpoint.” Dkt. #1 at 7–21. Plaintiff’s assertion is called into question by the fact that both his 10 action and Schoening challenged the statute on overbreadth grounds and the Court shares the 11 R&R’s doubts as to the viability of Plaintiff’s claims.1 12 A more significant substantive hurdle to Plaintiff’s complaint is Judge Tsuchida’s 13 explanation that Plaintiff’s claims appears precluded under Heck v. Humphrey, 512 U.S. 477 14 (1994). That case “precludes a prisoner’s § 1983 claim that, if successful, would invalidate a
15 conviction or sentence ‘where that conviction [or sentence] has not been reversed, expunged or 16
17 1 Schoening further calls Plaintiff’s claims into question:
18 The Washington Supreme Court has construed RCW 9.68A.090 to prohibit communicating with children with “the predatory purpose of promoting their 19 exposure to and involvement in sexual misconduct.” Washington v. McNallie, 120 Wash.2d 925, 931–32, 846 P.2d 1358, 1363 (1993). Plaintiff's concerns that the 20 term “immoral purposes” could be the basis of a prosecution of—for example— a school nurse who advised a pregnant teenager about abortion options are 21 unfounded, because the scope of the term “immoral purposes” has been limited to the category “sexual misconduct.” McNallie, 846 P.2d at 1362 (noting that the 22 controlling opinion in State v. Schimmelpfennig, 92 Wash.2d 95, 594 P.2d 442 (1979), supports this interpretation). 23
Schoening, 636 F. Supp. 2d at 1157. 24 1 called into question by issuance of a writ of habeas corpus.’” Dkt. #5 at 3 (quoting Heck, 512 at 2 486–87). Because Plaintiff sought to vacate all convictions under the communication for 3 immoral purposes statute, including his own, Judge Tsuchida concluded that Plaintiff’s action 4 was barred by Heck. 5 In an attempt to salvage his complaint, Plaintiff indicates that he wishes to abandon his
6 own release. Dkt. #9 at 7. But serious questions remain as to whether this alone would be 7 adequate. See Heck, 512 U.S. at 487 (in § 1983 actions, “the district court must consider whether 8 a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or 9 sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that 10 the conviction or sentence has already been invalidated”); id. at 489 (“Even a prisoner who has 11 fully exhausted available state remedies has no cause of action under § 1983 unless and until the 12 conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of 13 habeas corpus.”). 14 Intermixed with these substantial legal questions, Plaintiff indicates that he has lacked
15 adequate access to legal resources because of COVID-19. Such restrictions served as good cause 16 for an extension of Plaintiff’s deadline for submitting objections to the R&R. See Dkts. #7 and 17 #8. But even then, Plaintiff recounts ongoing difficulties obtaining the materials he believes are 18 necessary to explore his claims and consider the effect of Heck. Dkt. #9 at 2 (Plaintiff indicating 19 he is unable to provide adequate legal support for his positions). Along similar lines, Plaintiff 20 requests that he be granted leave to refine his complaint. Id. at 7 (Plaintiff indicating that he 21 “could submit a fresh new complaint”). 22 Under these unique circumstances, the Court determines that the appropriate approach is 23 to dismiss Plaintiff’s claims without prejudice. Plaintiff has not provided the Court with further 24 information on his plan to pay the filing fee in this action and does not make clear payment’s 1 effect on screening under 28 U.S.C. § 1915. In addition, dismissal without prejudice will afford 2 Plaintiff greater time to access the legal materials he believes are necessary to support his claims. 3 Lastly, this result will permit Plaintiff to refile his action in the unlikely case he discovers a viable 4 legal theory that is not precluded by Heck. 5 Accordingly, and having considered the R&R, Plaintiff’s objections, and the remainder
6 of the record, the Court finds and ORDERS: 7 1. The Court ADOPTS the Report and Recommendation (Dkt. #5) to the extent consistent 8 with this ORDER. 9 2. Plaintiff’s Prisoner Civil Rights Complaint (Dkt. #1), and the claims set forth therein, are 10 DISMISSED without prejudice. 11 3. The Clerk is directed to send copies of this Order to the parties. 12 4. This matter is CLOSED. 13 Dated this 19th day of April, 2021. 14
15 A 16 RICARDO S. MARTINEZ 17 CHIEF UNITED STATES DISTRICT JUDGE
18 19 20 21 22 23 24