Burak v. Sprague, Civ. A. No. 70-2828.

CourtU.S. District Court — Eastern District of Pennsylvania
Writing for the CourtMASTERSON
Citation335 F. Supp. 347
PartiesMarvin BURAK v. Richard SPRAGUE et al. and City of Philadelphia.
Docket NumberCiv. A. No. 70-2828.
Decision Date17 December 1971

335 F. Supp. 347

Marvin BURAK
v.
Richard SPRAGUE et al.
and
City of Philadelphia.

Civ. A. No. 70-2828.

United States District Court, E. D. Pennsylvania.

December 17, 1971.


335 F. Supp. 348

Marvin Burak, pro se.

David Richman, Asst. Dist. Atty., Philadelphia, Pa., for defendants, Sprague, Specter, Poserina, and Alessandroni.

George J. Ivins, Deputy City Solicitor, Philadelphia, Pa., for defendants, Rizzo, McCullough, Beck.

Robert Landis, Philadelphia, Pa., for defendant Nix.

OPINION

MASTERSON, District Judge.

Civil rights. Plaintiff has brought this action, which purports to be a class action under Rule 23 against nine individuals and the City of Philadelphia claiming deprivation of his constitutional rights and seeking redress under 42 U.S.C. § 19831 by way of an injunction, declaratory judgment and damages. Plaintiff predicates jurisdiction upon 28 U.S.C. § 1331 (Federal Question)2 and 28 U.S.C. § 1343(3) (Civil Rights and Elective Franchise).3

Plaintiff was arrested on February 13, 1969, and charged with obscene exhibition, running a disorderly house, conspiracy, and corrupting the morals of a minor. He received a preliminary hearing on February 24th before the Honorable John Poserina, a defendant and Judge of the Municipal Court of Philadelphia County. Plaintiff's trial before the Honorable Robert N. C. Nix, Jr., also a defendant, and a jury began on October 31, 1969. It extended through November 12, 1969, on which date the jury found him guilty on all charges. The Commonwealth of Pennsylvania was

335 F. Supp. 349
represented at trial by then Assistant District Attorney Joel Moldovsky, another defendant in this case. Other prosecutors named as defendants are Arlen Spector, Richard A. Sprague, and Eugene V. Alessandroni, II, who are respectively the District Attorney of Philadelphia County, the First Assistant District Attorney, and Assistant District Attorney in charge of litigation. Following his conviction, plaintiff appealed to the Superior Court of Pennsylvania. That appeal is still pending at this time

In this case, plaintiff seeks declaratory and injunctive relief against the enforcement of those statutes under which he was convicted, and against the enforcement of all Pennsylvania statutes regulating obscenity and sexual conduct between consenting individuals, on the ground that all of these statutes violate the First and Fourteenth Amendments. Plaintiff also asks this court for an injunction barring further proceedings in his state prosecution on the grounds that he was convicted under one of these allegedly unconstitutional statutes and because certain of the defendants, individually and in concert, acted so as to deny him a fair trial. In addition, plaintiff seeks compensatory and punitive damages against each of the above named defendants who were involved in the prosecution, as well as the City of Philadelphia.

The remaining defendants are Frank Rizzo, then Police Commissioner of Philadelphia, Hugh McCullough a police Inspector, and Joseph Beck, a detective. Plaintiff seeks damages against Inspector McCullough for allegedly disseminating prejudicial pre-trial publicity at a news conference subsequent to plaintiff's arrest. Plaintiff claims that defendant Rizzo is vicariously liable for his inspector's actions. No allegations whatsoever are lodged against defendant Beck, except that he was the arresting officer. All of the defendants have moved to dismiss the complaint. For the reasons stated below, we will grant these motions.

We begin with plaintiff's claim for declaratory and injunctive relief against the future enforcement of all Pennsylvania statutes relating to obscenity and sexual conduct between consenting individuals. At oral argument, plaintiff conceded that there are no threatened prosecutions against him at this time. Consequently, this aspect of his case must be dismissed for lack of a genuine controversy. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 24 L. Ed.2d 669 (1971).

Next, injunctive and declaratory relief which would bar further proceedings in his state prosecution cannot be issued under the doctrine of Younger v. Harris, supra and the companion cases...

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5 practice notes
  • Salvati v. Dale, Civ. A. No. 73-461
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 5, 1973
    ...v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) and cases cited therein; Burak v. Sprague, 335 F. Supp. 347 (E.D.Pa.1971); Burton v. Peartree, 326 F.Supp. 755 (E.D.Pa. 1971). From the allegations presented against Judge Hester at Civil Action No. 73......
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 20, 1972
    ...and submit an appropriate order consistent with this opinion at the earliest possible time. --------Notes: 1 See also Burak v. Sprague, 335 F.Supp. 347, 349 (E.D.Pa.1971), where standing was denied to a plaintiff who conceded that there were no threatened prosecutions under the statutes whi......
  • Independent Tape Merchant's Association v. Creamer, Civ. No. 72-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 24, 1972
    ...U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Burak v. Sprague, E.D.Pa.1971, 335 F.Supp. 347. It is nonetheless apparent that an injunction would be A federal court should not enjoin threatened state prosecutions except when necessa......
  • Boddorff v. Publicker Industries, Inc., Civ. A. No. 79-4023.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 25, 1980
    ...1295 (E.D.Pa.1977) (Davis, J.); Dawes v. Philadelphia Gas Commission, 421 F.Supp. 806 (E.D.Pa.1976) (Fullam, J.); Burak v. Sprague, 335 F.Supp. 347 (E.D.Pa.1971) (Masterson, J.); Eisman v. Pan American World Airlines, 336 F.Supp. 543 (E.D.Pa.1971) (Troutman, J.); Mimms v. Philadelphia Newsp......
  • Request a trial to view additional results
5 cases
  • Salvati v. Dale, Civ. A. No. 73-461
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 5, 1973
    ...v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) and cases cited therein; Burak v. Sprague, 335 F. Supp. 347 (E.D.Pa.1971); Burton v. Peartree, 326 F.Supp. 755 (E.D.Pa. 1971). From the allegations presented against Judge Hester at Civil Action No. 73......
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 20, 1972
    ...and submit an appropriate order consistent with this opinion at the earliest possible time. --------Notes: 1 See also Burak v. Sprague, 335 F.Supp. 347, 349 (E.D.Pa.1971), where standing was denied to a plaintiff who conceded that there were no threatened prosecutions under the statutes whi......
  • Independent Tape Merchant's Association v. Creamer, Civ. No. 72-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 24, 1972
    ...U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Burak v. Sprague, E.D.Pa.1971, 335 F.Supp. 347. It is nonetheless apparent that an injunction would be A federal court should not enjoin threatened state prosecutions except when necessa......
  • Boddorff v. Publicker Industries, Inc., Civ. A. No. 79-4023.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 25, 1980
    ...1295 (E.D.Pa.1977) (Davis, J.); Dawes v. Philadelphia Gas Commission, 421 F.Supp. 806 (E.D.Pa.1976) (Fullam, J.); Burak v. Sprague, 335 F.Supp. 347 (E.D.Pa.1971) (Masterson, J.); Eisman v. Pan American World Airlines, 336 F.Supp. 543 (E.D.Pa.1971) (Troutman, J.); Mimms v. Philadelphia Newsp......
  • Request a trial to view additional results

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