315 F.Supp. 1387 (N.D.Fla. 1970), PCA 2224, Mitchum v. Foster

Docket Nº:PCA 2224.
Citation:315 F.Supp. 1387
Party Name:Robert MITCHUM, d/b/a the Book Mart, Plaintiff, v. Clinton E. FOSTER, as Prosecuting Attorney of Bay County, Florida, M.J. 'Doc'Daffin, as Sheriff of Bay County, Florida, and the Honorable W. L. Fitzpatrick,as Circuit Judge of the Fourteenth Judicial Circuit in and for Bay County,Florida,Defendants.
Case Date:July 22, 1970
Court:United States District Courts, 11th Circuit, Northern District of Florida
 
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Page 1387

315 F.Supp. 1387 (N.D.Fla. 1970)

Robert MITCHUM, d/b/a the Book Mart, Plaintiff,

v.

Clinton E. FOSTER, as Prosecuting Attorney of Bay County, Florida, M.J. 'Doc'Daffin, as Sheriff of Bay County, Florida, and the Honorable W. L. Fitzpatrick,as Circuit Judge of the Fourteenth Judicial Circuit in and for Bay County,Florida,Defendants.

No. PCA 2224.

United States District Court, N.D. Florida, Pensacola Division.

July 22, 1970

Paul Shimek, Jr., Pensacola, Fla., for plaintiff.

Clinton E. Foster, Mayo Johnston, Panama City, Fla., Raymond Marky, Tallahassee,Fla.,

Page 1388

Joe J. Harrell, Pensacola, Fla., for defendants.

Before SIMPSON, Circuit Judge, and SCOTT and ARNOW, District Judges.

OPINION-- ORDER

PER CURIAM.

Before this statutory three-judge court (28 U.S.C. 2281, 2284) for decision upon argument and submission after due notice are plaintiff's application for preliminary injunction in accord with prior temporary restraining orders issued herein by Judge Arnow as a single judge, and motions of the several defendants to vacate or dissolve said temporary restraining orders.

Also presented are motions of the defendants to strike and to dismiss addressed to the amended or supplemental complaint.

The facts necessary to our determination are briefly stated. Not in dispute, they are drawn from the pleadings and admissions therein and from stipulations entered into by counsel before Judge Arnow on July 8, 1970.

In late March 1970, the defendant Foster, in his official capacity brought suit in the Circuit Court for Bay County, Florida, under that state's general nuisance statutes, sections 823.05 and 60.05, Florida Statutes, F.S.A., seeking abatement as a nuisance of plaintiff Mitchum's business 'The Book Mart', 19 Harrison Avenue, Panama City, Florida. The defendant Fitzpatrick on April 6, 1970, in his official capacity as Judge of that court, granted interlocutory relief based upon the offering for sale by plaintiff of certain books determined by the state court after examination to be obscene under Section 847.011, Florida Statutes, F.S.A.

Review of that interlocutory order and later contempt proceedings against plaintiff thereunder is presently pending upon plaintiff's appeal before the appropriate Florida appellate court, the Florida District Court of Appeals for the First District.

After the state court had taken jurisdiction and entered its original order this suit was instituted. Judge Arnow as a single judge on May 12, 1970 and June 5, 1970, entered temporary restraining orders directed to the state prosecuting attorney, the state circuit judge, and the executive officer of the state court, Sheriff Daffin, enjoining further proceedings in and under the state court suit. Without detailing the exact dates of entry of the competing restraining...

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