Housworth v. Glisson

• Decision Date: 14 June 1978
• Docket Number: Civ. A. No. C-77-2060-A.
• Citation: 485 F. Supp. 29
• Parties: J. Wayne HOUSWORTH et al. v. Patrick C. GLISSON.
• Court: U.S. District Court — Northern District of Georgia

485 F. Supp. 29

J. Wayne HOUSWORTH et al. v. Patrick C. GLISSON.

Civ. A. No. C-77-2060-A.

United States District Court, N. D. Georgia, Atlanta Division.

June 14, 1978.

COPYRIGHT MATERIAL OMITTED

Julian H. Henry, Athens, Ga., Edward Augustine, Atlanta, Ga., for plaintiffs.

George Dillard, James H. Weeks, Decatur, Ga., for defendant.

ORDER

HENDERSON, District Judge.

This is an action brought for declaratory and injunctive relief and damages predicated on 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. §§ 1983 and 1985. The plaintiffs¹ are owners of retail stores which sell materials that may be used for the consumption of illegal drugs such as marijuana and cocaine. The defendant is the Director of Finance of DeKalb County, Georgia, who is charged with the duty of administering the county business license ordinance. Presently pending are the defendant's motions to dismiss² and for summary judgment and the plaintiffs' motion for a preliminary injunction.

On December 20, 1977 each of the plaintiffs was served with a notice of a hearing to show cause why their licenses should not be revoked. Subsequently, the defendant revoked the plaintiffs' business licenses, finding that they had sold certain items which could be described as drug paraphernalia.³

One day before the scheduled hearings this action was filed (although the defendant was not served until January 27, 1978) and the plaintiffs immediately moved for a temporary restraining order in this court which was denied. Pursuant to the ordinance, the DeKalb County Board of Commissioners (hereinafter referred to as the "Board") met to review the revocations and on March 28th affirmed the defendant's decision. Three days later a hearing was held in this court on the plaintiffs' motion for a preliminary injunction. Then on April 27, 1978, the plaintiffs petitioned the Superior Court of DeKalb County for a writ of certiorari, pursuant to Ga.Code Ann. § 19-101, to obtain judicial review of the administrative proceedings.

The most significant ground urged in support of the motion to dismiss is the doctrine of abstention as articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). At least until the time the plaintiffs filed their motion for certiorari in state court, Younger and its progeny did not apply because there was no pending state court proceeding with which this court could interfere. Leonard v. City of Columbus, 551 F.2d 974 (5th Cir.), aff'd en banc, 565 F.2d 957 (1977), cert. docketed No. 77-1032 (Jan. 20, 1978).

Leonard held that abstention was improper when a police officer, discharged by the city, refrained from exercising his right, apparently similar to that of the plaintiffs' in the present case, to appeal to a Georgia superior court an adverse administrative decision. Of course, the plaintiffs here chose to apply for certiorari, but until then, Leonard controlled this case.

The defendant seeks to distinguish Leonard by pointing out that the Board's power to review the defendant's decision is judicial in nature and therefore state court proceedings were in fact begun when the plaintiffs appealed to the Board. The Leonard court recognized that review by a state court was available but held nonetheless that the absence of such proceedings at the time the federal suit was filed permitted and, in fact, compelled the district court to reject abstention. 551 F.2d at 978. In noting the availability of relief through certiorari the court cited Ball v. Police Committee, 136 Ga.App. 144, 220 S.E.2d 479 (1975), which expressly states that the municipal administrative hearing was a "judicial proceeding." Id. at 145, 220 S.E.2d 479.

Thus, the nature of the hearing at the administrative level appears to have been unimportant to the court of appeals because, regardless of whether the Board acts in a judicial manner, it is not a court of law. Such a distinction is not contrary to the philosophy of Younger and Juidice since the state's interest in being free from interference with its administrative proceedings, quasi-judicial though they may be, is not sufficient to require a federal court to abstain. See Juidice v. Vail, supra 97 S.Ct. at 1217-18.

Therefore, up until April 27, 1978 this court could not have refrained from considering the complaint. However, the filing of the plaintiffs' petition in state court creates a new problem because Younger principles may apply even when the federal plaintiff wins the race to the courthouse by filing in district court before his adversaries can initiate state proceedings against him. In a case where the plaintiff is the first to file suit, the federal court must abstain if the state court action is commenced "before any proceedings of substance on the merits have taken place in the federal court," Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975), or while "the federal litigation was in an embryonic stage and no contested matter had been decided," Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975). In both Hicks and Doran (the Court's opinions were issued within a week of each other), the state court proceedings had begun on the day following the commencement of the federal action. The opinions give little guidance as to what course to follow when the two suits are not filed contemporaneously. Two recent cases indicate that abstention under circumstances such as these are intertwined with the issue of whether to grant injunctive relief. In Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir. 1977) (en banc), the district court granted an injunction against enforcement of an alleged unconstitutional statute and oral argument was heard by a panel of the Fifth Circuit Court of Appeals before state court actions were initiated. Without specifically addressing the problem, the court of appeals held that the district court properly rejected abstention.⁴Id. at 299.

More illuminating is Graham v. Breier, 418 F.Supp. 73 (E.D.Wis.1976), where the district court entered a temporary restraining order prior to the commencement of a state action. Although noting that a temporary restraining order hardly constitutes a final determination on the merits, the court decided that because the movant must establish a prima facie claim to obtain such relief, "proceedings of substance on the merits," within the contemplation of Hicks, had taken place in the federal suit as of the date the order was signed. Id. at 77-78.

The same is true in the present case. Because it appears that the plaintiffs have made a sufficient showing with respect to three of the criteria for preliminary injunctive relief, the court must determine the fourth, i. e., the likelihood of success on the merits. That consideration began on March 31, 1978 when the hearing for injunctive relief was held, twenty-seven (27) days before state court proceedings began. Consequently, it appears that abstention would not be proper in view of the Hicks and Doran holdings.

Before deciding the issue of injunctive relief several other grounds for dismissal raised by the defendant must be addressed. First, although the complaint was filed on December 28, 1977, the defendant was not served until January 27, 1978. This is hardly the prompt service envisioned by Rule 4(a), Fed.R.Civ.P., but the defendant has not shown any prejudice or harm resulting therefrom. No action had been taken before January 27, 1978 and the defendant in fact participated in the proceedings prior to service. Therefore, dismissal cannot be predicated on this ground. H. Alpers & Assocs. v. Omega Precision Hand Tools, Inc., 62 F.R.D. 408 (E.D.Pa.1974); Ashland Oil & Refining Co. v. Hooker Chemical Corp., 51 F.R.D. 512 (S.D.Ohio 1970).

The defendant's argument that the termination of the hearing before him mooted any challenge to procedural due process also lacks merit. Such reasoning would virtually preclude effective relief from the denial of constitutional rights in administrative proceedings.

The defendant also contends that this action is really one against DeKalb County and that any damages assessed must be paid from county funds. It is true that a plaintiff may not name as defendants members of a governmental entity which itself is immune from suit under Section 1983 simply to create a conduit for access to public funds. Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) (en banc). Yet in Muzquiz the plaintiffs sought affirmative injunctive relief against members of a pension fund board of trustees to require them to make restitution of certain money obtained by the fund. The court of appeals has been careful to limit the effect of Muzquiz to situations where plaintiffs make a similarly transparent effort to reach public funds through Section 1983. See Miller v. Carson, 563 F.2d 741 (5th Cir. 1977); Gates v. Collier, 559 F.2d 241 (5th Cir. 1977); Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976).

The plaintiffs here do not appear to be making such an attempt. Injunctive and declaratory relief is properly sought against the defendant in his official capacity. See Miller v. Carson, supra at 747-48. In addition, they ask for damages from the defendant individually for alleged intentional acts depriving them of their constitutional rights. Reeves v. City of Jackson, 532 F.2d 491 (5th Cir. 1976). To adopt the defendant's theory "would be a long step backward in federal jurisdiction." Miller v. Carson, supra at 748.⁵

The defendant is correct in noting that the complaint fails to allege any acts constituting a conspiracy to deprive the plaintiffs of their constitutional rights. Granville v. Hunt, 411 F.2d 9 (5th Cir. 1969). More importantly, Section 1985 is available to redress only certain types of class-based ills, none of which seem to be involved here. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (en...