Collins v. Kendall County, Ill.

• Decision Date: 03 December 1986
• Docket Number: No. 85-1947,85-1947
• Citation: 807 F.2d 95
• Parties: Sharon COLLINS, Frank Patroff and Sequoia Books, Inc., an Illinois corporation, d/b/a Denmark II, Plaintiffs-Appellants, v. COUNTY OF KENDALL, ILLINOIS, a body corporate and politic, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 95

807 F.2d 95

Sharon COLLINS, Frank Patroff and Sequoia Books, Inc., an Illinois corporation, d/b/a Denmark II, Plaintiffs-Appellants,

v.

COUNTY OF KENDALL, ILLINOIS, a body corporate and politic,

et al., Defendants- Appellees.

No. 85-1947.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 16, 1986.

Decided Dec. 3, 1986.

Glen A. Stanko, Reno O'Byrne & Kepley, P.C., Champaign, Ill., for plaintiffs-appellants.

James R. Schirott, Schirott & Assoc., P.C., Itasca, Ill., for defendants-appellees.

Before WOOD, POSNER, and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiffs appeal dismissal, based on the Younger abstention doctrine, of their suit under 42 U.S.C. Sec. 1983. Plaintiffs claim that the district court erred in dismissing the case because their complaint alleged bad faith prosecution which is an exception to the Younger doctrine. We affirm.

I. FACTS

The plaintiffs--Sequoia Books, Inc., Frank Patroff, and Sharon Collins--are the corporate owner and two employees of the Denmark II, an adult bookstore that sells and exhibits books, magazines, and films of an explicit sexual nature. Plaintiffs brought a section 1983 action alleging that the defendants--the County of Kendall, the State's Attorney, the Sheriff, and the Deputy Sheriff of Kendall County, Illinois--initiated state criminal obscenity charges, a civil nuisance suit, and searches and seizures of their bookstore in order to harass and annoy the plaintiffs with the purpose of forcing the bookstore to close. The plaintiffs claim that such bad faith prosecutions have deprived them of their constitutional rights under the first, fourth, and fourteenth amendments, and therefore seek money damages, and declaratory and injunctive relief from pending criminal charges as well as future actions. The plaintiffs moved for a preliminary injunction and requested a hearing. At the hearing, the defendants, who maintain they have not acted in bad faith but instead have exercised lawful authority in enforcing the state's obscenity laws, made an oral motion to dismiss asserting that the pending state criminal prosecutions required the district court to abstain in accordance with Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The district court denied the plaintiffs' request to present evidence and denied their motion for a preliminary injunction. The judge ruled that the plaintiffs had not fulfilled the requirements for preliminary injunctive relief. Indeed, he stated that they had not even established a need for an evidentiary hearing on their motion. ¹ The plaintiffs moved for reconsideration, and the defendants filed a written motion to dismiss. The district court denied the motion for reconsideration and granted the motion to dismiss, holding that the plaintiffs had failed to allege sufficient facts to support an inference of bad faith or harassing prosecution, an exception to the Younger doctrine. The district court therefore found that injunctive relief was unavailable and that abstention was required in light of the pending state prosecutions against Sequoia Books and Patroff.

The defendants first brought misdemeanor and felony obscenity charges against the Denmark II bookstore in April 1980. At that time, the Denmark II was owned by Lawrence Carlock, and Sequoia Books had no interest in it. About two weeks later, a search of the bookstore took place, several items were seized, and felony obscenity charges were filed. Carlock closed the store in October 1981. Following the closure, the criminal charges were dismissed.

Sequoia Books bought the Denmark II in June 1982. In November and December of 1982, and again in March 1983, misdemeanor obscenity charges were filed against several bookstore employees regarding material on sale at the bookstore. In March, May, and June of 1983, and in January and October of 1984, the defendants conducted searches of the Denmark II and seized many items. ² Following these searches, misdemeanor charges were brought against other Denmark II employees. The district court found that "34 state criminal prosecutions were initiated against the Plaintiffs. Of these, at least nine remain pending, three resulted in convictions, and in three Plaintiffs were found not guilty."

II. DISCUSSION

In Younger, the Supreme Court held that federal courts should refrain from enjoining state criminal prosecutions pending when the federal suit was filed, in accord with traditional principles of equity comity, and federalism. ³ Younger v. Harris, 401 U.S. 37, 53, 91 S.Ct. 746, 754, 27 L.Ed.2d 669 (1971). In Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482 (1975), the Court held that Younger also applies to state civil nuisance proceedings. Bad faith or harassing prosecution, however, is an exception to the Younger doctrine. ⁴ Huffman, 420 U.S. at 611, 95 S.Ct. at 1211. " '[A] showing of a bad faith [prosecution] is equivalent to a showing of irreparable injury for purposes of the comity restraints defined in Younger.' " Wilson v. Thompson, 593 F.2d 1375, 1382 (5th Cir.1979) (quoting Shaw v. Garrison, 467 F.2d 113, 120 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972)). The harm posed by bad faith prosecution is both immediate and great, ⁵ and defending against the state proceedings would not be an adequate remedy at law because it would not ensure protection of the plaintiff's federal constitutional rights. Younger, 401 U.S. at 46, 91 S.Ct. at 751. See Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977).

A plaintiff asserting bad faith prosecution as an exception to Younger abstention must allege specific facts to support an inference of bad faith. "The Younger rule, as applied in Hicks [v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) ], requires more than a mere allegation and more than a 'conclusory' finding to bring a case within the harassment exception." Grandco Corp. v. Rochford, 536 F.2d 197, 203 (7th Cir.1976). This specific evidence must show that state prosecution "was brought in bad faith for the purpose of retaliating for or deterring the exercise of constitutionally protected rights." Wilson, 593 F.2d at 1383.

In ruling upon the defendants' motion to dismiss here, the district court made the following findings:

The Plaintiffs allege three activities by state officials as the basis for its [sic] allegations of bad faith: multiple prosecutions several of which have been dismissed or have resulted in acquittal, a number of searches of the bookstore and seizures of its property, and the filing of a civil nuisance suit. As had already been stated of the 34 state criminal prosecutions brought against Plaintiffs based on obscenity charges, three have led to acquittals, three have led to convictions, a number have been dismissed, and at least nine are pending. Additionally, the Denmark II has been searched, pursuant to valid warrants, five times during an 18 month period. Many items were seized during these searches and misdemeanor obscenity charges occasionally followed the searches. A civil nuisance suit has also been filed and is pending.

Collins v. County of Kendall, No. 84 C 10011, at 5 (N.D.Ill. May 28, 1985). The district court determined that the multiple prosecutions alone did not establish bad faith, that the searches and seizures were pursuant to valid warrants and had been upheld by this court, that the defendants successfully prosecuted the plaintiffs on three obscenity charges, ⁶ and that the civil nuisance suit did not raise the otherwise lawful law enforcement activities to the level of bad faith prosecution.

In reviewing a Rule 12(b)(6) dismissal, we take all allegations in the complaint as true. Kugler v. Helfant, 421 U.S. 117, 125, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975); United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1264 (7th Cir.1985); Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 385 (7th Cir.1984), aff'd, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). In addition, we view all allegations in the light most favorable to the plaintiff. Wilson v. Harris Trust & Savings Bank, 777 F.2d 1246, 1247 (7th Cir.1985); Haroco, 747 F.2d at 385.

After reviewing the record, and based upon the principles set forth above, we agree with the district court that the plaintiffs have failed to set forth facts supporting an inference of bad faith prosecution or harassment. Instituting approximately thirty criminal prosecutions over a two-year period does not constitute bad faith or harassment in and of itself. See Grandco Corp. v. Rochford, 536 F.2d 197, 203 (7th Cir.1976) (court "not persuaded that evidence of multiple prosecutions is sufficient by itself to support [the] necessary inference" of bad faith and harassment); Sandquist v. Pitchess, 332 F.Supp. 171, 179 (C.D.Cal.1971) ("Where one distributes or exhibits a great number of different publications or films, each of which is colorably obscene, he assumes a risk of multiple prosecutions and the number of arrests and prosecutions he encounters cannot be determinative of whether bad-faith harassment has occurred."). One-third of these cases were dismissed, but the Appellate Court of Illinois reversed the dismissals and remanded for further proceedings, People v. Bailey, 125 Ill.App.3d 346, 80 Ill.Dec. 633, 465 N.E.2d 979 (1984), and the Supreme Court of the United States denied certiorari, Bailey v. Illinois, 471 U.S. 1057, 105 S.Ct. 2123, 85 L.Ed.2d 487 (1985). In eight cases, six of which are against the president of Sequoia Books, service of the arrest warrant could not be obtained as the defendants apparently could not be located. Of the remaining twelve cases, three resulted in directed verdicts of not guilty, in one case the prosecutor withdrew the charges, and the prosecutor has indicated that he will do the same in another case. One case was...