Nihiser v. Sendak

• Decision Date: 04 June 1974
• Docket Number: Civ. No. 73 F 93.
• Citation: 405 F. Supp. 482
• Parties: Clyde NIHISER, d/b/a Movieland Drive-In Theater, Plaintiff, v. The Honorable Theodore L. SENDAK, in his capacity as Attorney General of the State of Indiana, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

405 F. Supp. 482

Clyde NIHISER, d/b/a Movieland Drive-In Theater, Plaintiff, v. The Honorable Theodore L. SENDAK, in his capacity as Attorney General of the State of Indiana, et al., Defendants.

Civ. No. 73 F 93.

United States District Court, N. D. Indiana, Fort Wayne Division.

June 4, 1974.

COPYRIGHT MATERIAL OMITTED

John F. White, Indianapolis, Ind., Richard J. Sullivan, Decatur, Ind., for plaintiff.

Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, Ind., for defendants.

Before SWYGERT, Circuit Judge, BEAMER, Chief District Judge, and ESCHBACH, District Judge.

MEMORANDUM OF DECISION AND ORDER

This civil rights action is before the court on defendants' consolidated motion to dismiss pursuant to Rule 12(b) (6), Fed.R.Civ.P., and motion to strike pursuant to Rule 12(f), Fed.R.Civ.P. Defendants' motions will be denied.

Plaintiff filed his complaint on October 19, 1973, seeking a temporary restraining order and temporary and permanent injunctions to restrain defendants from proceeding under Public Law 336 of the 1973 Acts of the Indiana General Assembly. I.C. 35-30-10.5 (hereinafter referred to as the Indiana Nuisance Statute). The Indiana Nuisance Statute provides procedures for declaring a place which produces or displays obscene films a nuisance. Injunctive relief was sought by plaintiff under the provisions of 42 U.S.C.A. § 1983, 28 U. S.C.A. § 1331, 28 U.S.C.A. § 1343, 28 U. S.C.A. § 2284(3) and Rule 65, Fed.R. Civ.P. Plaintiff also sought to have the Indiana Nuisance Statute declared unconstitutional, basing jurisdiction for declaratory relief on 28 U.S.C.A. §§ 2201, 2202 and Rule 57, Fed.R.Civ.P. A three-judge court was sought pursuant to 28 U.S.C.A. §§ 2281 and 2284 and upon a finding by the court on October 19, 1973, that plaintiff's complaint presented a substantial federal question, the court requested the convening of a three-judge court. On October 29, 1973, the request was granted, and a three-judge court was designated.

The facts are not substantially disputed. On October 12, 1973, defendant Daniel C. Burry, Prosecuting Attorney for Adams County, Indiana, filed a verified petition to enjoin and abate a public nuisance. On the same day, a restraining order was issued from the Adams Circuit Court by the Honorable Myles F. Parrish, also a defendant in this action. A subpoena duces tecum was issued ordering plaintiff to appear before the Adams Circuit Court and to bring with him the film "Deep Throat" along with all other motion pictures he had in his possession and a list of titles and play dates for all films exhibited over the last three years. Notice and summons to appear for a hearing on a temporary injunction to abate a public nuisance requested in the petition were also issued on that date.

On October 18, 1973, plaintiff brought the instant action alleging that Adams County Prosecuting Attorney Burry, Adams Circuit Court Judge Parrish, and Indiana Attorney General Sendak, by enforcement of the Indiana Nuisance Statute were depriving or planned to deprive plaintiff of his rights under the United States Constitution. The complaint alleges that the Indiana Nuisance Statute as written and as applied to plaintiff is an example of an unconstitutional prior restraint on First Amendment rights. Plaintiff alleges that defendants are attempting under color of state law to suppress motion pictures presumptively protected under the First Amendment without a prior determination that said films are in fact obscene under current Constitutional standards. Such an attempt is alleged to constitute a prior restraint on 1st, 5th and 14th Amendment rights in that it restricts plaintiff in the exercise of his rights to see, disseminate and distribute presumably protected material to the interested adult public of Adams County, Indiana, as well as infringing on the rights of those adults to view such material. Consequently, since the statute operates as a prior restraint on protected rights, it does and will continue to have a chilling effect on 1st Amendment freedoms. It is alleged such conduct of defendants by enforcement and use of the statute perpetuates such a chilling effect on the rights of plaintiff and the adult citizens of Adams County, Indiana, to view non-obscene films.

Plaintiff also asserts that his 1st and 5th Amendment rights are violated by use of the Indiana Nuisance Statute because the acts proscribed are defined in such vague and indefinite terms that normal men must guess at their meaning. In the absence of adequate safeguards, it is alleged that such vague and overbroad provisions are a violation of procedural due process required by the 5th Amendment. These alleged vague and overbroad provisions are said to be susceptible of sweeping and improper application by defendants, amounting in practice to impermissible censorship powers which will constitute a prior restraint on the exercise of First Amendment rights and have an inhibiting and chilling effect on the exercise of such rights.

Plaintiff further alleges that defendants' conduct in seeking to close plaintiff's business deprives plaintiff of his 5th Amendment rights. It is stated that defendants' conduct is aimed at intimidating plaintiff in the conduct of his trade or business and that plaintiff will suffer a complete loss of profits. It is also argued that plaintiff has suffered and will suffer damage by interference with his business relations and that this will cause him irreparable harm and incalculable loss for which no remedy exists at law.

It is further alleged that the Indiana Nuisance Statute violates "substantive due process" of the 5th and 14th Amendments by authorizing a deprivation of liberty and property interests by defendants by use of unreasonable, arbitrary and capricious means without a showing of any real and substantial relationship to a state interest compelling enough to justify state action to limit the exercise of plaintiff's Constitutional rights. It is alleged that equal protection is violated by rendering a business subject to closure under the guise of abating a nuisance on the basis of isolated transactions as to a few out of thousands of presumptively protected motion pictures without having to show that a nuisance exists. Because of such violations of plaintiff's Constitutional rights, plaintiff seeks to have the Indiana Nuisance Statute declared unconstitutional and seeks an injunction to prevent defendants from proceeding under its provisions.

Defendants moved to dismiss plaintiff's amended complaint for failure to state a claim upon which relief can be granted. Defendants first argue that allegations in the complaint that the Indiana Attorney General and the Prosecuting Attorney for Adams County are necessary parties are not supported by the statutory language. It is also argued that the Indiana Nuisance Statute is constitutional because it complies with all the requirements set forth by the United States Supreme Court's recent decisions on obscenity. See, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). The defendants challenge plaintiff's allegations that the Indiana Nuisance Statute is not sufficiently explicit in describing the proscribed acts as required by Miller, supra. Defendants argue that the Indiana courts may construe the Indiana Nuisance Statute in the future to comply with the dictates of Miller. The Supreme Court in Miller sanctioned such construction in order to save state statutes, the constitutionality of which may have been jeopardized by the new ruling. In addition, defendants argue that this is a civil suit and that the recent rulings by the Indiana Supreme Court that criminal statutes employing identical language to define the proscribed acts were unconstitutional have no bearing on the instant action. It is argued that the state has an interest in enjoining public nuisances and that issuance of an injunction in order to abate a public nuisance is an effective and constitutional method. It is argued that the Indiana Nuisance Statute does not operate as a prior restraint in that it is only aimed at pornographers. It is further argued that the only order which can be issued prior to an adversary hearing was approved by the Supreme Court. Thus, defendants seek a dismissal of the action.

Defendants also argue that this case is a proper one for the application of the abstention doctrine. Defendants submit that this action is one in which the federal court should abstain to allow interpretation of the statute in Indiana courts. Thus, defendants argue the case should be dismissed for reasons of comity between state and federal courts.

Finally, defendants move to strike paragraph four in the prayer for relief on the grounds that it is vague. All of the defendants motions will be denied.

I.

The first question raised in defendants' motion to dismiss is whether the Attorney General of the State of Indiana and the Prosecuting Attorney for Adams County, Indiana, are "necessary parties." The amended complaint states that Attorney General Sendak and Prosecuting Attorney Burry were named as defendants because they were officials authorized under the Indiana Statute "either initially or as a necessary party of the State of Indiana, to abate a `nuisance' . . .." Section 3 of the Indiana Nuisance Statute provides that:

whenever a nuisance exists, the attorney general, the prosecuting attorney of the county in which such nuisance exists, or any person who is a resident of such county may bring an action to abate such nuisance and to perpetually enjoin the person maintaining the same from further maintenance thereof. IC

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