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LUONGO v. WENZEL

November 26, 1975

ROBERT A. LUONGO, JR., Plaintiff,
v.
HENRY G. WENZEL III, HENRY O'BRIEN, SAVERIO FIERRO, JOSEPH C. MERLO, Defendants. ROBERT A. LUONGO, JR., Plaintiff, v. HENRY G. WENZEL III, HENRY O'BRIEN, SAVERIO FIERRO, JOHN BINANNO, Defendants. ROBERT A. LUONGO, JR., Plaintiff, v. HENRY G. WENZEL III, HENRY O'BRIEN, SAVERIO FIERRO, WILLIAM McGEE III, Defendants. ROBERT A. LUONGO, JR., Plaintiff, v. JAMES CLEARY, HENRY KISSINGER, WILLIAM SAXBE, HENRY O'BRIEN, WILLIAM L. UNDERWOOD, JR., GEORGE F. X. McINERNEY, CLOTHER H. VAUGHN, Defendants. ROBERT A. LUONGO, JR., Plaintiff, v. WILLIAM CAHN, HENRY G. WENZEL III, SAVERIO FIERRO, JOSEPH C. MERLO, JOHN BINANNO, WILLIAM McGEE, JOHN C. SUTTER, Defendants



The opinion of the court was delivered by: NEAHER

NEAHER, District Judge.

 Plaintiff, Robert A. Luongo, Jr., a pre-trial detainee in Suffolk County Jail, has instituted five related civil actions alleging violations of his constitutional rights arising out of the conduct of State criminal proceedings currently pending against him in Suffolk and Nassau Counties. Four of these suits *fn1" are brought under 42 U.S.C. §§ 1983, 1985 seeking injunctive and declaratory relief and monetary damages. The fifth *fn2" seeks the same relief plus a writ of habeas corpus. The cases contain similar issues of fact and of law, and therefore have been consolidated. They are presently before the court on defendants' motions to dismiss for lack of subject matter jurisdiction and failure to state a claim for which relief may be granted. F.R.Civ.P. 12(b)(1) and (6). For the reasons stated herein, defendants' motions must be granted and the complaints dismissed.

 The State Proceedings

 On July 30, 1974 plaintiff was indicted by a Suffolk County Grand Jury on 25 counts of grand larceny, and about the same time by a Nassau County grand jury on 70 additional counts, all related to his alleged operation of a "Ponzi" scheme. At time of indictments plaintiff was in Sweden, but was extradited at the application of the Suffolk County District Attorney's Office. He was arraigned on October 23, 1974 before judges in Suffolk and Nassau Counties, and at the request of the Suffolk County District Attorney was remanded without bail. His subsequent applications for bail were denied in both State and federal habeas corpus petitions. *fn3" Plaintiff has remained in Suffolk County Jail pending the State Prosecutions.

 Since arraignment Luongo has changed counsel at least twice. He was represented by an attorney when these civil rights actions were filed in August 1975. Although his attorney filed papers in opposition to defendants' motions to dismiss, counsel did not appear at oral argument, and after the hearing the court was informed that he was withdrawing as plaintiff's attorney. Plaintiff has continued the actions pro se. The court notes, however, that plaintiff has had the assistance of counsel of his own choice in constructing the allegations of the complaints and in opposing the motions to dismiss.

 Federal Claims

 Plaintiff alleges "bad faith, malfeasance, and coercion" at every stage of the State criminal proceedings. At the core of plaintiff's many and repeated allegations is the claim that defendants acted individually and in conspiracy with one another to present perjured testimony before the Suffolk and Nassau County grand juries which resulted in his indictments. He alleges that county prosecutors coerced certain witnesses into giving false testimony in order to incriminate plaintiff for crimes in fact committed by them. He further maintains that as a result of these conspiracies he was falsely indicted, extradited from Sweden and, in order to cover up the conspiracies, held without bail.

 Named as defendants are, among others, county, State and federal officials: (1) former and present county prosecutors, Wenzel, O'Brien and Cahn; (2) Suffolk County Chief of Detectives, Fierro; (3) individuals who allegedly perjured themselves before the grand jury and conspired with the prosecutors, Merlo, Binanno and McGee; (4) an attorney, allegedly former counsel for plaintiff, Sutter; (5) two State Supreme Court Justices, Underwood and McInerney; (6) Clerk of Court of Suffolk County, Vaughn; (7) Warden of Suffolk County Jail, Cleary; and (8) federal officials who participated in his extradition, Secretary of State Kissinger and former Attorney General Saxbe.

 Relief Requested

 Plaintiff seeks damages, a declaratory judgment that defendants' actions are unconstitutional, and numerous injunctions, *fn4" including the demand for the "issuance of an injunction enjoining all of the defendants . . . from continued prosecution pursuant to [the State] indictment . . . until the issue of coerced purjured [ sic ] testimony by the defendants can be settled by a hearing and/or trial." *fn5" Plaintiff also seeks immediate release on bond not to exceed $10,000. *fn6"

 Plaintiff has thus named a plethora of defendants, seemingly almost everyone who has come in contact with the State indictments and pretrial proceedings. He has flooded this court with a barrage of allegations sufficiently confusing in sorting the substantial issues from the frivolous. Mindful of plaintiff's present pro se status, the court has endeavored to read the complaints with an eye toward protecting plaintiff's claims. Without intimating any opinion on the actual intent of the plaintiff in bringing these actions, the apparent consequence of the federal suits is to prevent the State prosecutions from going forward. Thus a timely disposition of the instant matters is mandated.

 Motions to Dismiss

 Defendants have strongly urged the court to dismiss the complaints on the ground that federal intervention in the State criminal proceedings is unwarranted. *fn7" In light of the binding principles enunciated in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and its progeny, *fn8" it is the belief of this court that to exercise jurisdiction in these cases would be improvident.

 Younger applies a basic doctrine of equity jurisprudence, that courts of equity should not act to restrain a criminal prosecution, if there is an adequate remedy at law and no great and immediate irreparable injury. See id. at 43-44. Indeed, the State courts in question have neither passed, nor been asked to pass, upon the constitutional claims herein, and plaintiff yet retains the opportunity to raise his claims in his defense in the State courts. Nevertheless plaintiff would require this court to try the very issues, factual and legal, which will be presented in the State criminal trials. The federal court may not presume the State courts will be derelict in overseeing plaintiff's rights. Instead this court must bear in mind that "State courts are quite as capable as federal courts of determining the facts, and they alone can define and interpret state law. Equally important, under Art. VI of the Constitution, state courts ...


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