Hartsville Theatres, Inc. v. Fox, Civ. A. No. 70-245.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtHAYNSWORTH, , and SIMONS and RUSSELL
Citation324 F. Supp. 258
PartiesHARTSVILLE THEATRES, INC., a South Carolina Corporation, Jerry Ballard, and Willie J. Harley, Plaintiffs, v. C. Lavaun FOX, Paul D. Grant and John Doe, Defendants.
Docket NumberCiv. A. No. 70-245.
Decision Date23 February 1971

324 F. Supp. 258

HARTSVILLE THEATRES, INC., a South Carolina Corporation, Jerry Ballard, and Willie J. Harley, Plaintiffs,
v.
C. Lavaun FOX, Paul D. Grant and John Doe, Defendants.

Civ. A. No. 70-245.

United States District Court, D. South Carolina, Aiken Division.

Argued January 25, 1971.

Decided February 23, 1971.


324 F. Supp. 259

George S. Daley, Jr., Charlotte, N. C., and Jack McGuinn, Columbia, S. C., for plaintiffs.

Daniel R. McLeod, Atty. Gen., and John P. Wilson, Asst. Atty. Gen., Columbia, S. C., for defendants.

Before HAYNSWORTH, Chief Judge, and SIMONS and RUSSELL, District Judges.

DONALD RUSSELL, District Judge:

Claiming a violation of their First Amendment rights as a result of certain proceedings begun under Section 16-414.2, Code of South Carolina (1962), plaintiffs seek both injunctive and declaratory relief. We dismiss.

The facts giving rise to this controversy are not in dispute. On March 13, 1970, the plaintiffs exhibited commercially at a theatre in Aiken, South Carolina, the film "Cherry, Harry and Raquel". The defendants, who are the

324 F. Supp. 260
Sheriff and Assistant Solicitor of Aiken County, personally viewed the film at a commercial showing by the plaintiffs on that date. As a result, the defendants arrested the plaintiffs on a charge of violating the South Carolina Obscenity Statute, Section 16-414.2, Code of South Carolina (1962) and, incident thereto, seized the film itself. Five days later the plaintiffs instituted this action on the ground that the statute under which they had been arrested violated their First Amendment rights.1 In their complaint, they alleged that the film which prompted the arrest had been shown "in many communities throughout South Carolina" without incident. They, also, claimed on information and belief, that movie exhibitors "face arrests for any future exhibition of `X' rated films, under color of" the challenged statute. They did not assert, however, any threats, harassment or seizures on the part of the defendants in connection with any "X" rated films other than the single film involved in this proceeding; and it should be noted that, by plaintiffs' own affirmative allegations, the picture involved here, though "X" rated, had been exhibited in many areas of South Carolina without any charges or threats being made under the challenged statute. The plaintiffs prayed the convocation of a Three-Judge Court under Sections 2281 and 2282, 28 U.S.C., the granting of temporary and permanent injunctive relief against the enforcement of the challenged statute, and a judgment commanding the return of the seized film

Following the filing of this action by the plaintiffs, the parties agreed on March 30, 1970, for a return of the seized film to the plaintiffs. The parties formalized this action in a consent order, which found the seizure invalid under the authority of Tyrone, Inc. v. Wilkinson (4th Cir. 1969) 410 F.2d 639, cert. den. 396 U.S. 985, 90 S.Ct. 477, 24 L.Ed.2d 449, but provided that the film would be made available to the defendants for use in any subsequent prosecution, with reservation by the plaintiffs of any right to object to its admissibility at that time. In this same consent order, entered on April 24, 1970, it was agreed that the convocation of a Three-Judge Court was unnecessary. The order proceeded to find "that the course of conduct herein described will not be repeated, and therefore, (the Court) declines to enter an injunction herein." The order concluded with the sentence:

"That the Court will retain jurisdiction in this case for a period of six months at the end of which, should nothing further be heard from the plaintiff(s), the complaint will be dismissed."

On May 1, 1970, at plaintiffs' request, a preliminary hearing, adversary in nature, was held in Aiken before a Magistrate, who, after viewing the film and hearing testimony, found probable cause that the film was obscene within the meaning of Section 16-414.2 and bound the plaintiffs over for action by the Grand Jury. A true bill of indictment, charging a violation of Section 46-414.2 was returned against the plaintiffs at the May, 1970, term of the Court of General Sessions for Aiken County. Following this action, the plaintiffs, dissatisfied that the Magistrate had not sustained their legal claims, requested the restoration of the cause to the calendar and the convocation of a Three-Judge Court, and renewed their prayer for injunctive and declaratory relief. A Three-Judge Court was thereupon convened and a hearing had. At the hearing, the plaintiffs disclaimed any intent to intimate "bad faith by Defendants", asked "for no federal factual determination" and sought "only a conclusion of law as to the statute" under which the plaintiffs had been indicted.

Prior to the hearing in this Court, the Supreme Court of South Carolina was confronted in another case with a constitutional

324 F. Supp. 261
attack under Section 16-414.2 on many of the grounds posed by the plaintiffs in this proceeding. In sustaining the constitutionality of the statute, that Court, recognizing that federal constitutional questions were controlled in their resolution by pertinent decisions of the United States Supreme Court and, after a perspicacious review of such decisions, gave to the statute an application that conformed to the standards enunciated in what it conceived to be the controlling federal authorities in the vexing field of definitional obscenity. State v. Burgin, S.C., 178 S.E.2d 325, filed December 16, 1970.2

At the outset, the defendants contend that on familiar principles of comity as well as by reason of the positive command of Section 2283, 28 U.S.C., this Court should dismiss the action without considering the validity of the substantive constitutional issues sought to be raised by the plaintiffs. Since, in our opinion, Section 2283 effectively denies to this Court power to grant relief here, it is unnecessary to consider either the issue of comity or the constitutionality of the statute challenged.

Section 2283, 28 U.S.C. expressly denies to a federal court the power to grant an injunction staying pending "proceedings" in a state court, subject only to certain specific exceptions. This "clear cut" statutory prohibition, as the Court recently emphasized in Atlantic C. L. R. Co. v. Brotherhood of Locomotive Engineers (1970) 398 U.S. 281, 294, 90 S.Ct. 1739, 26 L.Ed.2d 234, is more than a mere statement of "a principle of comity"; it represents "a binding rule on the power of the federal courts" a rule which may not be ignored, even though the State "proceedings" sought to be stayed "interfere with a protected federal right * * *, even when the interference is unmistakably clear" and "regardless of whether the federal court itself has jurisdiction over the controversy."3 It is "not to be whittled away by judicial improvisation" nor are its exceptions to be "enlarged by loose statutory construction."4

There are, it is true, a number of decisions, which have treated Section 2283 as simply an expression of the doctrine of comity, to be applied in the exercise of a judicial discretion; and, in the exercise of that discretion, they have recognized and applied a so-called Dombrowski exception to the statute. See, Sheridan v. Garrison (5th Cir. 1969) 415 F.2d 699, 704-705, cert. den. 396 U.S. 1040, 90 S.Ct. 685, 24 L.Ed.2d 685; Wallace v. Brewer (D.C.Ala.1970) 315 F.Supp. 431, 450-451 (Three-Judge Court).5 These decisions find no support in either the majority or dissenting opinions in Dombrowski, both of which emphasize that there were no pending State proceedings and that, for such reason, Section 2283 was not applicable; the inference is warranted that if there had been pending State "proceedings", Section 2283 would have barred relief. These decisions, also, preceding as they do Justice Black's opinion in Atlantic Coast Line, are at variance with the construction of 2283 stated in that opinion and must be considered as overruled by

324 F. Supp. 262
it.6 Of course, if the State procedure offered no means for a plaintiff to secure a vindication of his rights, such as was the situation in Caulder v. Durham Housing Authority (4th Cir. 1970) 433 F.2d 998, 1009, the statute may not be used as an instrument to prevent a plaintiff from securing a vindication of his constitutional rights.7 That situation, however, does not confront us here

The application of the statute to this proceeding thus depends on whether there were "proceedings" pending in the State Court at the time this action was filed. "Proceedings", as used in the statute, is to be given a "comprehensive" meaning and "includes all steps taken or which may be taken in the state court or by its officers from the...

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4 practice notes
  • Garrett v. Hoffman, Civ. A. No. 77-150.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 2, 1977
    ...nullification of Section 2283 through resort to the device of a declaratory judgment." Hartsville Theatres, Inc. v. Fox, 324 F.Supp. 258 (D.S.C.1971). See also Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (injunction issued to "protect or effectuate&quo......
  • Palmer v. Mutual Life Insurance Company of New York, Civ. No. 11-114.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • March 31, 1971
    ...Life Ins. Co. of North America, 408 F.2d 500 (8th Cir. 1969); Cliborn v. Lincoln National Life Ins. Co., supra; Taylor v. New York Life 324 F. Supp. 258 Ins. Co., supra; New England Mutual Life Ins. Co. of Boston, Mass. v. Hinkle, 248 F.2d 879 (8th Cir. 1957), cert. dismissed, 358 U.S. 65, ......
  • Joachim Memorial Home v. Askew, No. A1-75-82.
    • United States
    • U.S. District Court — District of South Dakota
    • December 20, 1975
    ...judgment to be unconstitutional. See Euge v. Smith, 418 F.2d 1296 (8th Cir. 1969), (Blackman, J.); Hartsville Theatres, Inc. v. Fox, 324 F.Supp. 258, 262-64 III. Third, this Court lacks jurisdiction of the subject matter because the Plaintiffs' constitutional claim "is wholly insubstan......
  • THI of S.C. at Magnolia Manor-Inman, LLC v. Gilbert, C/A No.: 7:13-cv-02929-GRA
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 9, 2014
    ...U.S.C. § 2283; Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see Hartsville Theatres, Inc. v. Fox, 324 F. Supp. 258, 261 (D.S.C. 1971) ("This 'clear cut' statutory prohibition . . . is more than a mere statement of a principle of comity; it represents......
4 cases
  • Garrett v. Hoffman, Civ. A. No. 77-150.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 2, 1977
    ...the "circuitous nullification of Section 2283 through resort to the device of a declaratory judgment." Hartsville Theatres, Inc. v. Fox, 324 F.Supp. 258 (D.S.C.1971). See also Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (injunction issued to "protect or effectua......
  • Palmer v. Mutual Life Insurance Company of New York, Civ. No. 11-114.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • March 31, 1971
    ...Life Ins. Co. of North America, 408 F.2d 500 (8th Cir. 1969); Cliborn v. Lincoln National Life Ins. Co., supra; Taylor v. New York Life 324 F. Supp. 258 Ins. Co., supra; New England Mutual Life Ins. Co. of Boston, Mass. v. Hinkle, 248 F.2d 879 (8th Cir. 1957), cert. dismissed, 358 U.S. 65, ......
  • Joachim Memorial Home v. Askew, A1-75-82.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 20, 1975
    ...judgment to be unconstitutional. See Euge v. Smith, 418 F.2d 1296 (8th Cir. 1969), (Blackman, J.); Hartsville Theatres, Inc. v. Fox, 324 F.Supp. 258, 262-64 III. Third, this Court lacks jurisdiction of the subject matter because the Plaintiffs' constitutional claim "is wholly insubstantial ......
  • THI of S.C. at Magnolia Manor-Inman, LLC v. Gilbert, C/A No.: 7:13-cv-02929-GRA
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 9, 2014
    ...U.S.C. § 2283; Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see Hartsville Theatres, Inc. v. Fox, 324 F. Supp. 258, 261 (D.S.C. 1971) ("This 'clear cut' statutory prohibition . . . is more than a mere statement of a principle of comity; it represents a bi......

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