The opinion of the court was delivered by: TENNEY
The complaint herein alleges unlawful invasion of the premises of certain of the plaintiffs, together with unlawful arrests under a "nuisance" statute, § 1533 of the New York Penal Law, McKinney's Consol.Laws, c. 40, which plaintiffs assert is unconstitutional. The jurisdiction of this Court is invoked under Title 28 U.S.C. §§ 1343 and 2201 et seq., suit being authorized by Title 42 U.S.C. § 1983. This is an action for a declaratory judgment and an injunction to prevent the further alleged deprivation, under color of said state statute, of rights, privileges and immunities secured by the Constitution of the United States, to wit, the fourth amendment to said Constitution, as made applicable to the states by the fourteenth amendment and the due process and equal protection clauses of the fourteenth amendment. Since injunctive relief is sought against enforcement of the aforementioned state statute on the grounds of its unconstitutionality, plaintiffs request the convention of a three-judge district court as required by Title 28 U.S.C. § 2281 to hear and determine the issues herein.
The present motion, brought on by order to show cause, is for the designation of a three-judge district court and for an order temporarily restraining defendants during the pendency of this litigation.
The complaint challenges Section 1533 as unconstitutional on its face on the ground of vagueness and contends that said statute is unconstitutional as applied. It also alleges that the statute is being used unconstitutionally, that is, abused by prosecutorial action designed and effected to destroy Federal rights, and that unlawful entries and searches are being carried out. These last assertions, standing alone, would not require a three-judge court. However, if the injunctive relief demanded raises a substantial Federal question, plaintiffs assert that it is proper for the three-judge court to determine all of the issues, citing as authority Paul v. United States, 371 U.S. 245, 249-250, 83 S. Ct. 426, 9 L. Ed. 2d 292 (1963) and Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S. Ct. 568, 4 L. Ed. 2d 568 (1960). Whether the cited cases would constitute authority for a determination by the three-judge court of an action brought under Title 42 U.S.C. § 1983, in which action the constitutionality of a statute is not necessarily in issue, seems doubtful. However, for the reasons hereinafter set forth, it is not necessary to reach this point.
There are two essential requirements for convening a three-judge district court to enjoin the enforcement of a state statute. Not only must the constitutional question raised be a substantial one, but the complaint must also set forth a basis or bases for invoking the traditional equity jurisdiction of the Federal courts. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962) (per curiam); Note, The Three-Judge District Court: Scope and Procedure under Section 2281, 77 Harv.L.Rev. 299, 309, 317 (1963).
As stated by Judge Friendly in Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129, 131 (2d Cir. 1967):
"When a complaint for an injunction makes a claim of unconstitutionality which on its face would require a court of three judges under 28 U.S.C. § 2281 or 2282, the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); California Water Service Co. v. City of Redding, 304 U.S. 252, 254-255, 58 S. Ct. 865, 82 L. Ed. 1323 (1938); Wicks v. Southern Pacific Co., 231 F.2d 130 (9 Cir.), cert. denied [Wicks v. Brotherhood of Maintenance], 351 U.S. 946, 76 S. Ct. 845, 100 L. Ed. 1471 (1956); White v. Gates, 102 U.S.App.D.C. 346, 253 F.2d 868, cert. denied, 356 U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958); Carrigan v. Sunland-Tujunga Telephone Co., 263 F.2d 568 (9 Cir.) cert. denied, 359 U.S. 975, 79 S. Ct. 893, 3 L. Ed. 2d 841 (1959); Bell v. Waterfront Comm., 279 F.2d 853, 857-858 (2 Cir. 1960); Powell v. Workmen's Compensation Board, 327 F.2d 131, 138 (2 Cir. 1964). This is not merely a power confided to the single district judge but an important responsibility, since the requirement of three judges 'entails a serious drain upon the federal judicial system particularly in regions where, despite modern facilities, distance still plays an important part in the effective administration of justice,' Phillips v. United States, 312 U.S. 246, 250, 61 S. Ct. 480, 483, 85 L. Ed. 800 (1941), a burden not only on the inferior courts but, if the three judges retain the case, upon the Supreme Court by virtue of the provision for direct appeal, 28 U.S.C. § 1253."
Also, the district judge may consider whether plaintiffs have demonstrated any irreparable damage to themselves or any likelihood thereof (Linehan v. Waterfront Comm'n, 116 F. Supp. 401, 405 (S.D.N.Y.1953)) since an injunction against state prosecution under a state statute alleged to be unconstitutional will only be granted "to prevent irreparable injury which is clear and imminent". Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S. Ct. 877, 881, 87 L. Ed. 1324 (1943). The district judge may also dismiss the injunction action directed against the statute for failure to pursue available adequate remedies under state law. Davis v. State of Maryland, 248 F. Supp. 951 (D.Md.1965); Rosso v. Commonwealth of Puerto Rico, 226 F. Supp. 688 (D.P.R.1964).
I will first consider the claims of unconstitutionality directed to the statute itself. Section 1533 of the Penal Law, insofar as it is attacked herein, provides:
2. Opens or maintains a place where any narcotic drug is unlawfully used; or,
4. Visits or resorts to any such place for the purpose of unlawfully using ...