Corsican Productions v. Pitchess
| Decision Date | 17 November 1964 |
| Docket Number | No. 19063.,19063. |
| Citation | 338 F.2d 441 |
| Parties | CORSICAN PRODUCTIONS, a partnership, et al., Appellants, v. Peter PITCHESS, individually and as Sheriff of the County of Los Angeles, State of California, et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stanley Fleishman, Hollywood, Cal., for appellants.
Harold W. Kennedy, County Counsel, John J. Collins, Deputy County Counsel, Los Angeles, Cal., for appellees.
Before BARNES and BROWNING, Circuit Judges, and FRED M. TAYLOR, District Judge.
Appellants' complaint under the Civil Rights Act, 42 U.S.C.A. § 1983, 28 U.S. C.A. § 1343(3), was dismissed with prejudice on the ground that it did not state a claim upon which relief could be granted.
The complaint alleged that appellants produced a motion picture film titled "Bachelor Tom Peeping," which was not obscene; that various motion picture exhibitors wished to exhibit the film in the County of Los Angeles; that the sheriff, deputy sheriff, and district attorney of that county (the appellees), deliberately intending to suppress the exhibition of the film because they deemed it objectionable, threatened to prosecute exhibitors of the film under penal statutes prohibiting exhibition of obscene motion pictures; that solely because of appellees' conduct exhibitors declined to exhibit the film; and that its exhibition in the County of Los Angeles was, and would continue to be, prevented. Appellants prayed for a declaration that the film was not obscene, for an order restraining appellees from interfering with exhibition of the film, and for damages.
"The accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" (Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)) "* * * precludes dismissal for insufficiency of the complaint except in the extraordinary case where the pleader makes allegations which show on the face of the complaint some insuperable bar to relief." Wright, Federal Courts 250 (1963).
The district court thought such an insuperable bar was posed by the rule of Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), that federal courts will enjoin threatened state criminal prosecution "only on a showing of danger of irreparable injury `both great and immediate'", and that such a showing is not made out where "it does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith * * *." (id. at 164, 63 S.Ct. at 881).
Appellants dispute the applicability of Douglas v. City of Jeannette on several grounds:
(1) Unlike the complaint in Douglas v. City of Jeannette, the present complaint alleges that appellees, acting under color of state law, "deliberately set about to achieve the suppression of publications deemed `objectionable' and succeeded in their aim;" and such "informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief," though the means used are "threats of prosecution." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, and n. 8, 83 S.Ct. 631, 638, 9 L.Ed.2d 584.
(2) In Douglas v. City of Jeannette, plaintiffs themselves were threatened with prosecution, and there was nothing to indicate that their constitutional claims could not be fully determined in the state criminal proceeding. 319 U.S. at 164, 63 S.Ct. 877. In the present case, appellees' threats are directed solely against potential exhibitors of the film; appellants themselves are not threatened with a criminal prosecution in which they might challenge appellees' determination that their film is obscene and obtain a judicial determination by the state court, ultimately reviewable in the Supreme Court of the United States, of the constitutionality of appellees' interference with the film's exhibition. Cf. Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963).
(3) In Douglas v. City of Jeannette, plaintiffs sought to enjoin the prosecution. In the present case, appellants do not seek to enjoin prosecutions, but only threats of prosecution which have resulted in suppression of appellants' film with no opportunity to obtain a judicial test of the constitutional issues.
(4) The complaint in Douglas v. City of Jeannette sought only injunctive relief, and was dismissed solely for "want of...
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