875 F.2d 146 (7th Cir. 1989), 88-2467, Falls v. Town of Dyer, Ind.

Docket Nº:88-2467.
Citation:875 F.2d 146
Party Name:Phillip H. FALLS, doing business as Fast Lane Foods, Plaintiff-Appellant, v. TOWN OF DYER, INDIANA, et al., Defendants-Appellees.
Case Date:May 22, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 146

875 F.2d 146 (7th Cir. 1989)

Phillip H. FALLS, doing business as Fast Lane Foods,



TOWN OF DYER, INDIANA, et al., Defendants-Appellees.

No. 88-2467.

United States Court of Appeals, Seventh Circuit

May 22, 1989

Argued April 25, 1989.

Fred W. Grady, Portage, Ind., for plaintiff-appellant.

Elizabeth A. Brown, Judge & Knight, Park Ridge, Ill., defendants-appellees.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

Page 147


Phillip Falls uses portable signs in front of his convenience store in Dyer, Indiana, and the Town repeatedly has cited him for violating its zoning ordinances. Falls, a scofflaw, believes that the Town turns a blind eye to his competitors' portable signs. He filed this suit under 42 U.S.C. Sec. 1983, contending that the Town's enforcement of these concededly valid ordinances against his confessed violations infringes his constitutional rights.

Falls sought an injunction against adjudication of the complaints the Town had filed against him in state court. Falls should have raised his selective-prosecution defense in the state proceeding. In fact he did, and he lost. He was convicted and did not appeal. So by the time the district court decided the federal case, there were two potential obstacles: the comity doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which applies even after the state prosecution has run its course, Huffman v. Pursue, Ltd., 420 U.S. 592, 607-09, 95 S.Ct. 1200, 1209-10, 43 L.Ed.2d 482 (1975), and principles of preclusion (res judicata and collateral estoppel). The comity doctrine of Younger, designed for the state's protection, is the state's to claim or spurn, Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 479-80, 97 S.Ct. 1898, 1903-04, 52 L.Ed.2d 513 (1977), and preclusion is an affirmative defense that has yet to be raised. Both Younger and preclusion could pose interesting questions. Wooley v. Maynard, 430 U.S. 705, 710-12, 97 S.Ct. 1428, 1433-34, 51 L.Ed.2d 752 (1977), might allow Falls to seek relief against future repetitive prosecutions; preclusion is complicated by the fact that Falls was acquitted in one trial before being convicted in a second. See also David P. Currie, Res Judicata: The Neglected Defense, 45 U.Chi.L.Rev. 317 (1978). Because the parties have not presented these points we, like the district court, pass them by for now--although they remain to be considered later.

The district court granted the Town's motion to dismiss under Fed.R.Civ.P. 12(b)(6), holding that disputes about the interpretation and application of zoning laws do not state claims under Sec. 1983. Correct as this is, Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); Harding v. County of Door, 870 F.2d 430 (7th Cir.1989); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988); Muckway v. Craft, 789 F.2d 517 (7th Cir.1986), the point does not dispose of our case. Falls does not want...

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