Ntl, L.L.C. v. Pryor

• Decision Date: 19 January 2001
• Docket Number: No. CV 00-BU-2335-E.,CV 00-BU-2335-E.
• Citation: 128 F.Supp.2d 1324
• Parties: NTL, L.L.C. d/b/a Club 2000; William Kimble Bradford, Plaintiffs, v. Bill PRYOR, in his official capacity as the Attorney General of the State of Alabama; Joseph Dale Hubbard, in his official capacity as the District Attorney of the County of Calhoun, Alabama; and Larry Dean Amerson, in his official capacity as the Sheriff of Calhoun County, Alabama, Defendants.
• Court: U.S. District Court — Northern District of Alabama

128 F.Supp.2d 1324

NTL, L.L.C. d/b/a Club 2000; William Kimble Bradford, Plaintiffs, v. Bill PRYOR, in his official capacity as the Attorney General of the State of Alabama; Joseph Dale Hubbard, in his official capacity as the District Attorney of the County of Calhoun, Alabama; and Larry Dean Amerson, in his official capacity as the Sheriff of Calhoun County, Alabama, Defendants.

No. CV 00-BU-2335-E.

United States District Court, N.D. Alabama, Eastern Division.

January 19, 2001.

COPYRIGHT MATERIAL OMITTED

Steven J Strelzik, Atlanta, GA, Richard W Couch, Anniston, AL, for plaintiffs.

Billington M Garrett, Bill Pryor, Charles B Campbell, William P Clifford, Office of the Attorney General, Montgomery, AL, for Bill Pryor, defendants.

Memorandum Opinion

BUTTRAM, District Judge.

In the above-styled action, brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201, Plaintiffs NTL, L.L.C. d/b/a Club 2000 and William Kimble Bradford challenge the constitutionality of § 13A-12-200.11, Alabama Code (2000), which makes it a Class C felony¹

for any business establishment or any private club to show or allow to be shown for entertainment purposes the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

Plaintiffs' complaint seeks a judgment declaring that § 13A-12-200.11, which became effective July 1, 1998 as one of several amendments to the Alabama Anti-Obscenity Act, § 13A-12-200.1 et seq., is unconstitutional, both on its face and as applied. Plaintiffs also seek preliminary and permanent injunctive relief barring Defendants, Bill Pryor, the Attorney General for the State of Alabama; Joseph Dale Hubbard, the District Attorney of the County of Calhoun, Alabama; and Larry Dean Amerson, the Sheriff of Calhoun County, from enforcing the statute. Now before the Court are two pending motions. One was filed January 4, 2001 by Plaintiffs, who request a preliminary injunction barring Defendants from enforcing § 13A-12-200.11 "through and until this matter is concluded." (Doc. No. 19). The other is a motion to dismiss filed January 8, 2001 by Defendants, who argue that this Court should abstain from deciding the controversy under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). (Doc. No. 23). The parties have filed briefs and presented oral argument on the motions, which are ripe for decision. The Court concludes that Defendants' motion to dismiss is due to be GRANTED, which renders MOOT Plaintiffs' motion for a preliminary injunction.

I. BACKGROUND

The record reveals the following salient facts: Plaintiff NTL, L.L.C. ("Club 2000") is an Alabama limited liability company which transacts business under the trade name "Club 2000," with its principal place of business located in Hobson City, Calhoun County, Alabama. Complaint ¶ 6. Club 2000 offers entertainment to its customers, including, among other things, female dancers who perform in various stages of dress and undress, with some performances being in the nude. Id. Plaintiff Bradford is the sole "member" of Club 2000, and he "controls and directs" its business affairs. Id. ¶ 7. On or about June 8, 2000, Bradford was arrested for a violation of § 13A-12-200.11 after a female dancer at Club 2000 removed her bikini-style top during a routine. See id; Bradford Declaration of January 4, 2001 ¶ 5 (Doc. No. 20). After being arrested, he was released on bond, and a criminal prosecution based on his arrest is pending in the District Court of Calhoun County. See Bradford Declaration of August 22, 2000 ¶ 9 & Exhibit A thereto (Doc. No. 5).

Plaintiffs filed their complaint in this Court on August 22, 2000, naming as Defendants Pryor, Hubbard, and Amerson, each in their respective official capacities only. Plaintiffs requested that the Court declare that § 13A-12-200.11 is unconstitutional, both facially and as applied, and that the Court issue preliminary and permanent injunctive relief in their favor "barring the defendants from enforcing the challenged statute." Complaint at 5. Specifically, Plaintiffs claim that § 13A-12-200.11 violates the First Amendment's guarantee of freedom of speech.² Id. ¶ 2. After Plaintiffs effected service upon Defendants on December 19, 2000, Plaintiffs filed their motion for a preliminary injunction on January 4, 2001. Defendants responded by filing their motion to dismiss on January 8, 2001, arguing that this Court should abstain from adjudicating Plaintiffs' claims pursuant to the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971).

II. DISCUSSION

Obviously, the Court must determine the Younger abstention matter prior to attempting to resolve any question of whether Plaintiffs are entitled to a preliminary injunction, which would involve an inquiry into the merits. In Younger, the Supreme Court held that principles of equity and federalism demand that federal courts forebear from restraining pending state criminal prosecutions unless the federal court plaintiff establishes "great and immediate" irreparable injury, beyond "that incidental to every criminal proceeding brought lawfully and in good faith." 401 U.S. at 46, 47, 91 S.Ct. 746 (internal quotation marks omitted). Even where a plaintiff is the subject of a pending state prosecution under a statute that he argues is unconstitutional, the federal court generally should not intervene provided that the plaintiff has an adequate remedy at law in raising this constitutional defense in the state proceeding. See id. at 45, 91 S.Ct. 746. Moreover, neither the fact that statute may possibly be unconstitutional on its face nor that it may have a "chilling effect" upon First Amendment rights are sufficient, in themselves, to justify an injunction against good-faith attempts to enforce it. Id. at 51, 54, 91 S.Ct. 746. Younger and its progeny have recognized, however, narrow exceptions to its fundamental rule of abstinence in the limited cases of bad faith, harassing police and prosecutorial actions pursued without "any expectation of securing valid convictions," id. at 48, 91 S.Ct. 746; where the challenged statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it," id. at 53-54, 91 S.Ct. 746 (internal quotation marks omitted), or where there are other "extraordinary circumstances creating [a] pressing need for immediate federal equitable relief." Moore v. Sims, 442 U.S. 415, 433, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (quoting Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975)) (internal quotation marks omitted).

In a companion case issued the same day as Younger, the Supreme Court held that federal courts should also abstain from granting declaratory relief if Younger would have barred an injunction in the circumstances. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). While Younger itself involved a requested injunction of a pending criminal prosecution, it has been recognized that its abstention doctrine also applies where state criminal proceedings have commenced against a federal plaintiff who seeks an injunction restraining only future criminal prosecutions. See Redner v. Citrus County, Florida, 919 F.2d 646, 648-650 (11th Cir.1990) (holding abstention appropriate, implicitly rejecting the plaintiff's contention "that Younger does not apply because he requested no injunction of ongoing state criminal proceedings, but instead requested an injunction of future prosecutions"); Top Shelf, Inc. v. Mayor and Aldermen for the City of Savannah, 832 F.Supp. 361, 364 (S.D.Ga.1993); Ballard v. Wilson, 856 F.2d 1568, 1570 (5th Cir.1988); United Books v. Conte, 739 F.2d 30, 33 (1st Cir.1984).

When Plaintiffs filed this action, Bradford admittedly had been arrested for violating § 13A-12-200.11, released on bond, and a criminal prosecution was pending in state court. Thus, there can be no dispute that there are on-going state criminal proceedings against Bradford for purposes of Younger abstention. See Redner, 919 F.2d at 649. Plaintiffs are seeking injunctive and declaratory relief in this action that clearly would preclude and/or interfere with such criminal proceedings. Plaintiffs emphasized at oral argument on the motion to dismiss, however, that even though a criminal prosecution is pending with respect to Bradford individually, there are no pending state criminal proceedings pertaining specifically to Club 2000. Therefore, Plaintiffs contend, Younger should not apply to deprive Club 2000, which is a separate legal entity, of its right independently to pursue declaratory and injunctive relief with regard to the constitutionality of § 13A-12-200.11. The Court disagrees.

Ordinarily, persons or corporations not subject to ongoing state proceedings who show a genuine threat of prosecution may seek declaratory relief, Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), or injunctive relief, Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). However, unitary treatment is warranted under Younger in an employer's federal suit when its employees can vindicate identical interests by asserting them in a pending state court proceeding, see Hicks v. Miranda, 422 U.S. 332, 348-49, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), and in cases which federal plaintiffs are closely related to state defendants "in terms of ownership, control and management." Doran v. Salem Inn, 422 U.S. 922, 928-29, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

It is undisputed that Bradford is the sole owner of Club 2000 and that he controls and directs its affairs. Therefore, it is obvious that both Plaintiffs,...