Murphy v. City of Manchester

• Citation: 70 F.Supp.2d 62
• Decision Date: 17 September 1999
• Docket Number: No. CV-98-541-B.,CV-98-541-B.
• Parties: Gregory J. MURPHY v. CITY OF MANCHESTER, et al.
• Court: U.S. District Court — District of New Hampshire

70 F.Supp.2d 62

Gregory J. MURPHY v. CITY OF MANCHESTER, et al.

No. CV-98-541-B.

United States District Court, D. New Hampshire.

September 17, 1999.

COPYRIGHT MATERIAL OMITTED

Frank Mondano, Balliro, Mondano & Balliro, Boston, MA, Kenneth J. Gould, Gould & Gould, Londonderry, NH, for plaintiff.

Mark T. Broth, Devine, Millimet & Branch, PA, Manchester, NH, for defendants.

MEMORANDUM AND ORDER

BARBADORO, District Judge.

Gregory Murphy has filed a federal court complaint charging that the Manchester Police Department and several of its employees violated his First, Sixth, and Fourteenth Amendment rights when they removed him from his position as a patrol officer. He also asserts various state law claims. In this order, I explain why I must dismiss Murphy's claims for injunctive relief and stay his claims for damages based upon the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

I.

Murphy has been employed as a patrol officer by the Manchester Police Department for approximately 15 years. At all relevant times, he also served as president of the Manchester Police Patrolman's Association. On or about September 25, 1998, Murphy was notified that he was being charged with five separate violations of the police department's rules and regulations. The police department subsequently dropped one of the charges. The remaining four charges all stem from Murphy's union-related activities, including an editorial he wrote for the July edition of the union's newsletter and remarks he made to new recruits at the invitation of the police department.¹ On both occasions, Murphy referred to certain Manchester police officers who had crossed a picket line during a 1997 contract dispute as "scabs," and urged other officers not to embrace them as "brother officers." In accordance with the police department's regulations, Murphy could either admit his guilt and accept summary punishment from the chief of police or contest the charges in a hearing before the department's disciplinary board. Murphy chose the second option, and a hearing was scheduled for October 27, 1998.

The police department's regulations authorize the police chief to appoint the members of the disciplinary board. The board is composed of a police commissioner, an individual serving as the chief's designee, and a patrol officer or superior officer chosen from a list of approved individuals presented to the chief by the various bargaining bodies. See Manchester Police Department Rules and Regulations and/or Standard Operating Procedures ("MPD-SOP") at A-19-11, A-19-12. The board must hold a hearing on a formal charge. See id. at A-19-15. If the officer is found guilty, the board must then make a written recommendation to the police chief concerning appropriate discipline. See id. Officers appearing before the board are entitled to be represented by counsel. See id. at A-19-11. Although proceedings before the board are not governed by formal rules of evidence, officers may present evidence, cross-examine witnesses, and otherwise challenge the police department's case. See id.

Murphy filed a pre-hearing motion seeking to disqualify Police Chief Mark Driscoll from participating in the disciplinary process. See Pl. Mot. for Temp. Rest. Order and Prelim. Inj. Ex. H (Doc. 8). Murphy alleged that Chief Driscoll could not participate because he had initiated the charges against Murphy and, therefore, was biased against him. See id. Murphy also moved to recuse the police chief's designee to the board, Lieutenant Thomas Steinmetz, because Steinmetz's appointment allegedly violated a department regulation prohibiting a "[s]uperior [o]fficer of the bargaining body" from serving on a disciplinary board that is considering charges against a police officer. See Pl. Mot. for Temp. Rest. Order and Prelim. Inj. Ex. K (Doc. 8) (quoting MPD-SOP at A-19-12(F)). Finally, Murphy attempted to have the city solicitor's office barred from providing legal advice to the board because the city solicitor had represented the police department in litigation against the patrolman's association. See Pl. Mot. for Temp. Rest. Order and Prelim. Inj. Ex. J (Doc. 8). The board denied all three motions and rejected Murphy's motions to reconsider.

Shortly after the hearing began, Steinmetz ordered one of Murphy's attorneys removed for inappropriate behavior. Murphy subsequently appeared without counsel, refused to examine any witnesses, and declined to present a defense. On November 19, 1998, the board found him guilty of each of the four charges. It also recommended that he be suspended without pay for six months. Chief Driscoll accepted the disciplinary board's findings. He proposed to punish Murphy by: (1) suspending him without pay for six months; (2) requiring him to agree to refrain from "any future conduct of the type described in the charges;" (3) requiring him to agree that "any such future conduct will result in his termination;" and (4) requiring him to apologize for his misconduct. Murphy was terminated when he refused to accept the proposed discipline.

Murphy has a right to appeal the police chief's ruling to the Manchester Police Commission. See MPD-SOP at A-19-15(G). If an appeal is taken, the commission must review the record and determine whether to receive any additional evidence. See id. at A-19-15, A-19-16. It then must determine de novo whether the officer is guilty of the charged misconduct and whether the discipline ordered by the police chief should be imposed. See id. at A-19-16. Murphy may seek judicial review of a police commission ruling by filing a petition for writ of certiorari in superior court. See id. at A-19-16(H) (providing that an aggrieved officer may appeal to superior court); Kelley v. City of Manchester, No. 94-E-170, slip op. at 2-3 (Hillsborough SS. N. Dist. Jan. 29, 1995) (specifying that review of a police commission's ruling is by writ of certiorari). Alternatively, because Murphy claims that the disciplinary proceedings interfere with protected union activities, he may challenge the police chief's order in an arbitration proceeding and appeal an adverse ruling to the Public Employees' Labor Relations Board ("PELRB"). See N.H.Rev.Stat. Ann. § 273-A:6 (1987). He also has a right to appeal an adverse PELRB ruling to the New Hampshire Supreme Court. See N.H.Rev.Stat. Ann. § 273-A:14 (1987). Murphy has not invoked his right to arbitration. Nor has he yet sought review of Chief Driscoll's decision by the police commission.

Murphy filed his federal court complaint one day before the police department commenced formal disciplinary proceedings against him. Murphy's complaint charges that Chief Driscoll's termination order violates his First Amendment right to engage in protected speech, his Fourteenth Amendment rights to substantive and procedural due process,² and his Sixth Amendment right to counsel. The complaint also asserts several state law causes of action. Murphy seeks both injunctive relief and damages.

II.

In Younger v. Harris, the United States Supreme Court, citing considerations of comity, federalism, and equity, held that federal courts may not "stay or enjoin pending state court [criminal] proceedings except under special circumstances." 401 U.S. at 41, 91 S.Ct. 746. The Court has expanded the Younger abstention doctrine in recent years and applied it to cases involving certain civil judicial proceedings and administrative quasi-judicial proceedings. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 594, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Trainor v. Hernandez, 431 U.S. 434, 444, 446, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 627-28, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 11, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987).

The Court has developed a four-part test, consisting of three requirements and one exception, to determine whether the Younger abstention doctrine applies in a particular case. First, the federal case must affect pending state judicial proceedings. See, e.g., Middlesex County, 457 U.S. at 432, 102 S.Ct. 2515. Second, the proceedings must implicate important state interests. See id. Third, the state proceedings must afford the federal plaintiff adequate opportunity to raise any constitutional claims. See id. If each of these requirements is satisfied, abstention is required unless the federal plaintiff establishes that the state proceedings are tainted by bad faith, harassment, or some other extraordinary circumstance. See id. at 437, 102 S.Ct. 2515; see also Younger, 401 U.S. at 53-4, 91 S.Ct. 746. I review Murphy's federal complaint in light of these four elements.

A. The First Younger Requirement: Pending Judicial Proceedings

Murphy concedes that the disciplinary proceedings qualify as "judicial proceedings" for purposes of the Younger abstention doctrine. See Pl. Mem. at 4 (Doc. 17). He nevertheless argues that the proceedings cannot be deemed to be "pending" because they were not commenced until after he filed his federal court complaint and because he has not yet chosen to appeal the termination order to the police commission. I examine each argument in turn.

1. State proceedings commenced after the federal complaint was filed.

The Supreme Court has determined that a state proceeding commenced after a federal complaint has been filed nevertheless will be deemed to be "pending" for purposes of the Younger abstention doctrine if no substantive actions concerning the merits have occurred in the federal case prior to initiation of the state proceeding. See Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). In this case, the police department started the disciplinary process before any substantive actions occurred...