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December 12, 1973

P. O. John FITZGERALD et al., Plaintiffs,
Donald CAWLEY, as Police Commissioner of the City of New York, Defendant

Metzner, District Judge.

The opinion of the court was delivered by: METZNER

METZNER, District Judge:

Plaintiffs, who are New York City patrolmen, have moved for a preliminary injunction pursuant to Rule 65(a), Fed. R. Civ. P., enjoining defendant, the New York City Police Commissioner, from proceeding with a departmental trial as to these plaintiffs. The charges relate to an incident which occurred on March 19, 1972.

 Plaintiffs' action seeks relief under 42 U.S.C. § 1983 and its jurisdictional mate, 28 U.S.C. § 1343, claiming violations of various constitutional rights arising out of the continuation of the departmental trial.

 Plaintiff Shea is charged by the Police Department with wrongfully striking a suspect on the head twice with the butt of his revolver, and with failing to take several forms of "proper police action." Plaintiff Fitzgerald is charged with failing to notify police officials that during the course of the incident he discharged his revolver, and with wrongfully striking an individual in the face with his clenched fist. Finally, plaintiff Manzo is charged with being absent from his duty assignment without permission and with failing to take "proper police action" in connection with the March 19 incident.

 The charges and specifications were served on August 1, 1972. Each plaintiff entered a plea of not guilty. Thereafter trial before a police hearing officer was begun on October 12, 1972. After several adjournments, the trial continued on February 14 and March 15, 1973. On the latter date, a conference was held between the hearing officer and plaintiffs' counsel. At the conclusion of that conference, plaintiffs' counsel requested that the charges and specifications be referred back to the plaintiffs' unit commanders for "command discipline." Command discipline is a lesser form of disciplinary proceeding which does not result in a permanent entry on the patrolman's record and which has a maximum punishment of the loss of five days' vacation leave.

 The hearing officer then indicated that he would refer the request to Deputy Inspector Voelker for the latter's recommendation. The trial was then adjourned until March 28, 1973, at which time the hearing officer expected a response from Voelker. No further appearances took place before the hearing officer. The response from Voelker was not forthcoming on March 28.

 Plaintiffs claim that "[it] is believed that penalties were assessed pursuant to command discipline." This allegation is found in the complaint verified by counsel. No other substantiation is offered by plaintiffs. Defendant denies that command discipline was imposed and submits a statement signed by Voelker dated June 14, 1973 to the effect that the matter "should be referred for Trial."

 In the meantime, on April 28, 1973, Shea was arrested in Queens County for the much-publicized murder, in the course of his duties, of a small boy. During the last week in July 1973, the plaintiffs received notification that the original hearing would resume. They interpret this as withdrawing the command discipline which they claim had already been imposed.

 An Article 78 proceeding was then commenced in the state Supreme Court to restrain the continuation of the trial, to dismiss the charges, and to refer the matter to the plaintiffs' unit commanders for command discipline. That proceeding was dismissed on September 26, 1973 by Justice Silverman because of the lack of finality in the administrative proceedings before the Commissioner. Thereafter an application for a stay of the trial pending appeal was denied by the Appellate Division, First Department. The instant action was then commenced.

 Relying on Tang v. Appellate Division of the New York Supreme Court, 487 F.2d 138 (2d Cir. 1973), defendant argues that the instant case is barred by the doctrine of res judicata since plaintiffs have already presented their federal constitutional claims to the state courts, and have been denied relief. It is true that Tang reaffirmed earlier authority in this circuit and elsewhere that "a prior state court decision adjudicating federal constitutional questions is binding as res judicata in a subsequent federal action under § 1983." (At 142) However, that is not our case.

 The state courts thus far have not made determinations on the merits of plaintiffs' constitutional claims. Justice Silverman's order of dismissal was not on the merits. The constitutional argument was first presented to the Appellate Division on a motion for a stay of the departmental trial pending appeal from Justice Silverman's order. The denial of that motion does not represent a final decision on the merits of plaintiffs' case, which have not as yet been passed upon by the state courts. Furthermore, this state of the record precludes the application of the views of Judge Mulligan in Tang concerning Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923).

 Similarly, plaintiffs are not barred from seeking the instant injunction by the anti-injunction statute, 28 U.S.C. § 2283, since this is a suit brought under Section 1983. Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972). Nor are they barred by the doctrine of exhaustion of administrative remedies (Blanton v. State Univ. of New York, 489 F.2d 377 (2d Cir. 1973)), because (1) no such remedy is apparently available, and (2) the charges of bias and impartiality against the police department would make any such remedy fruitless. See, Gibson v. Berryhill, 411 U.S. 564, 574-575, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973).

 Finally, Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), does not automatically foreclose the instant application since the proceeding in question is not criminal in nature. See, Application of Delehanty, 202 Misc. 33, 115 N.Y.S. 2d 602, aff'd, 280 App. Div. 542, 115 N.Y.S. 2d 614, aff'd, 304 N.Y. 725, 108 N.E. 2d 46 (1952); cf., Grabinger v. Conlisk, 320 F. Supp. 1213, 1218 (N.D. Ill. 1970), aff'd, 455 F.2d 490 (7th Cir. 1972).

 Turning to the merits, plaintiffs have failed to meet their burden for obtaining a preliminary injunction. In this circuit, the movant must demonstrate either a combination of probable success on the merits and a showing of irreparable harm if the relief is denied, or that he has raised serious questions going to the merits and the balance of hardships tips sharply in his favor. Pride v. Community School Board of Brooklyn, New York School District #18, 488 F.2d 321 (2d ...

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