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OVERSTOCK BOOK CO. v. BARRY

October 31, 1969

OVERSTOCK BOOK COMPANY, Inc. (a Body Corporate of the State of New York), County of Suffolk, Deer Park, L. I., New York, Petitioner,
v.
John L. BARRY, in his capacity as Police Commissioner for the County of Suffolk Police Department, Hauppauge, New York and George J. Aspland, in his capacity as District Attorney for the County of Suffolk, State of New York, Riverhead, New York, Defendants, Jointly and Severally


Travia, District Judge.


The opinion of the court was delivered by: TRAVIA

TRAVIA, District Judge.

This matter comes on by way of a motion by the plaintiff for preliminary and permanent injunctions, for declaratory judgment, for damages and for the convening of a Three Judge Court. The defendants and the Attorney General of the State of New York seek by way of cross motions to dismiss the action under F.R.Civ.P. 12(b)(1) and (6), contending that this court lacks subject matter jurisdiction (failure to raise a substantial federal question) and that the complaint fails to state a claim upon which relief can be granted.

 The complaint alleges in substance that the defendants jointly and severally through their agents unconstitutionally seized substantial numbers of "presumptively protected" books, photographs and films from the plaintiff's place of business and arrested the president of the plaintiff corporation for holding obscene materials for sale.

 In the prayer for relief the plaintiff seeks:

 (a) a declaratory judgment that the New York Penal Law § 235.00 et seq., is unconstitutional on its face, or, is being applied unconstitutionally to the plaintiff;

 (b) a declaratory judgment that the New York Code of Criminal Procedure, § 791 et seq. (search warrants), has been and is being applied unconstitutionally to the plaintiff;

 (c) a preliminary injunction against seizures from the plaintiff of the material involved pending final hearing and directing the return of already seized material;

 (d) a preliminary injunction of the state prosecution against the president of the plaintiff;

 (e) permanent injunctions against:

 
(1) enforcement of the obscenity statutes;
 
(2) seizures without prior adversary hearings; and
 
(3) prosecution of the president of the plaintiff;

 (f) damages; and

 (g) the convening of a Three Judge Court to determine the constitutional questions.

 Jurisdiction is conferred on this court for the resolution of substantial constitutional questions by 28 U.S.C.A. § 1343(3) which provides in pertinent part that the District Courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person.

 
"To redress the deprivation, under color of any state law, [or] statute * * * of any right, privilege or immunity secured by the Constitution of the United States * * *."

 The organic law which authorizes the institution of a suit is 42 U.S.C.A. § 1983, which provides as follows:

 
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Costitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 The prayer for declaratory relief is founded on Rule 57 of the F.R.Civ.P. as well as 28 U.S.C.A. § 2201, and injunctive relief is sought under Rule 65, F.R.Civ.P.

 Jurisdiction of this court is also invoked under 28 U.S.C.A. § 1331, this being a civil action wherein the matter in controversy arises under the Constitution and laws of the United States and exceeds the sum or value of $10,000.

 The validity of the state statutes, or of the way they have been applied to the plaintiff, is the basis on which the defendants' actions must be justified or must fall. Assuming that 42 U.S.C.A. § 1983 is not applicable to this case, Section 1331(a) is applicable to provide jurisdiction since a federal question arises in a justiciable controversy over alleged injuries caused by the conduct claimed to violate the Constitution. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); cf. Williams v. Riley, 280 U.S. 78, 50 S. Ct. 63, 74 L. Ed. 175 (1929).

 This would seem to be the case at bar.

 While the plaintiff may have set forth sufficient allegations to secure the jurisdiction of this court, either under § 1343 or under § 1331, dismissal, if it is proper, for failure to state a claim upon which relief may be granted is not precluded. (F.R.Civ.P. 12(b)(6)). See Bell v. Hood, supra; cf. Birnbaum v. Trussell, 347 F.2d 86 (2d Cir.1965).

 While it is true that upon a motion to dismiss for failure to state a claim, the court must treat all allegations of fact as true, nevertheless allegations and statements in the complaint as to the law are left in question for the decision of the court. Le Clair v. Swift, 76 F. Supp. 729 (E.D.Wis.1948); United States v. Bimba, 233 F. Supp. 966, 968 (E.D.N.Y.1964) (Zavatt, Ch. J.); cf. 2A Moore's Federal Practice 2267, 2269 at n. 4.

 In the Le Clair case, supra, the court upon a motion to dismiss for failure to state a claim, interpreted a constitutional question which was underlying plaintiff's claim for an injunction against state officials from boarding and seizing items from plaintiff's boat. The complaint was dismissed upon a holding that the state statute was constitutional.

 In the present case, plaintiff alleges that defendants are violating plaintiff's rights under the First, Fourth, Fifth and Fourteenth Amendments to the Constitution, while acting under color of state law. Specifically, they state that 17,500 books, magazines, printed matter, and motion pictures were seized by defendants from plaintiff's premises; plaintiff's president was arrested, and that a criminal complaint was issued based on the obscenity laws of New York, Penal Law § 235.00 et seq. Plaintiff alleges that there was no "judicially superintended adversary hearing to determine whether the * * * publications * * * were obscene * * * prior to the seizure * * *", and that a search warrant was issued without notice to plaintiff, based on an affidavit of a police officer which had "* * * conclusions * * * [which] were * * * the sole, arbitrary, capricious, and non-judicial ad hoc conclusory assumption * * *" of the officer. Plaintiff also alleges that, by making seizures from three persons other than plaintiff, in December 1967, October 1968 and February 1969, defendants have "* * * ...


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