The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
In this case, Plaintiff Richard D. Kern alleges that
Defendants, the District Attorney of Erie County and two of his
assistants, have attempted to deter him from participating in
activities protected by the First Amendment. Specifically,
Plaintiff contends that Defendants have engaged in a series of
bad faith prosecutions to harass and punish him. Currently before
this Court is Defendants' Motion to Dismiss based upon the
abstention doctrine outlined in Younger v. Harris, 401 U.S. 37,
91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
Plaintiff is a journalist and political activist who resides in
Buffalo, New York. (Transcript of Evidentiary Hearing, at p.
168).*fn1 He is concerned about many local issues, including
housing problems, civil rights, and political corruption. (T. at
168-72). During the past twelve years, Plaintiff has written articles for small
community newspapers, attended public meetings, distributed
fliers, contacted public officials, published an internet
website, and participated in various other activities that he
describes as "civil disobedience."(T. at 169, 171, 189-92).
Defendant Frank J. Clark, III has been the District Attorney of
Erie County for the past seven years. (T. at 233). Defendant G.
Michael Drmacich is an Assistant Erie County District Attorney.
(T. at 22). Defendant Barry A. Zavah is currently retired, but
was recently employed as an Assistant Erie County District
Attorney. (T. at 110).
During the past several years, Plaintiff has been prosecuted by
the Erie County District Attorney's Office on various criminal
charges. (T. 33-34). Some of the charges were based upon
complaints lodged by local public officials. (T. at 34-37,
173-77). Many of the charges were ultimately dismissed by judges
of the Buffalo City Court for facial insufficiency. (T. at 59,
88, 187, 210). On other occasions, the charges were resolved when
Plaintiff pled guilty or accepted an adjournment in contemplation
of dismissal ("ACD"). (T. at 93-94, 204-205, 212-14, 216).
Defendants Drmacich and Zavah have prosecuted many of the cases
against Plaintiff on behalf of the District Attorney's Office.
(T. at 30, 117, 184, 242).
Charles Flynn has been a commissioner of the Buffalo Municipal
Housing Authority since 1999. (T. at 147). In addition, he has
served as chairperson of the Erie County Independence Party and
as a residency inspector for the City of Buffalo. (T. at 148-50).
In the late spring or early summer of 2001, Flynn contacted the
Buffalo Police Department and complained that he was being
harassed by Plaintiff. (T. at 151-52). Thereafter, Flynn
attempted to file charges against Plaintiff in Buffalo City
Court, but was advised that he could not file any charges until he had consulted with Defendant
Drmacich. (T. at 153). Flynn then met with Drmacich to discuss
his complaints regarding Plaintiff. (T. at 152). At that meeting,
Flynn provided Drmacich with audiotape recordings and papers
documenting the alleged harassment. (T. at 153).
On June 6, 2001, three accusatory instruments (Criminal
Informations) were filed in Buffalo City Court charging Plaintiff
with harassment in the second degree, aggravated harassment in
the second degree, and stalking in the fourth degree ("the Flynn
charges"). (Plaintiff's Exhibits C, D, & E). These charges were
based upon Flynn's allegations that Plaintiff left harassing
messages on his answering machine, sent him numerous faxes, and
confronted him in public on several occasions. Id. According to
Flynn, Plaintiff called him a "liar," "a disgrace to the
community," and questioned his integrity. Id. In addition, the
Informations charged that Plaintiff screamed at Flynn and told
him that he would be "watching." Id.
On September 7, 2001, the Honorable Margaret J. Murphy, Buffalo
City Court Judge, rendered a bench decision dismissing the Flynn
charges as facially insufficient.*fn2 (Defendant's Exhibit
A). The District Attorney's Office appealed that decision to the
Honorable Michael J. Pietruszka, Erie County Court Judge. Id.
On July 7, 2003, Judge Pietruszka filed a Memorandum and Order
reversing Judge Murphy in part and reinstating the two harassment
charges against Plaintiff. Id. Those charges are currently
pending in Buffalo City Court. (T. at 9-10). B. Procedural History
Plaintiff commenced this action on June 25, 2001, by filing a
Complaint in the United States District Court for the Western
District of New York. He seeks an injunction pursuant to
42 U.S.C. § 1983 barring Defendants from further prosecution of the
Flynn charges. Plaintiff argues that the prosecution violates his
First Amendment right to free speech.
On July 16, 2001, Defendants filed a Motion to Dismiss pursuant
to Rule 12 of the Federal Rules of Civil Procedure. In that
motion, Defendants argued inter alia that this case should be
dismissed based upon the Younger abstention doctrine.*fn3
On August 12, 2003, this Court filed an Order referring this
case to the Honorable Hugh B. Scott, United States Magistrate
Judge. This Court directed Judge Scott to conduct an evidentiary
hearing on the issue of whether the "bad faith" exception to the
Younger doctrine applies in this particular case. The
evidentiary hearing was held before Judge Scott on October 17,
24, and November 5, 2003.
On December 18, 2003, Judge Scott filed a Report and
Recommendation, in which he recommended that Defendants' Motion
to Dismiss be granted. Plaintiff filed Objections to Judge
Scott's Report and Recommendation on January 7, 2004.
On February 25, 2004, this Court deemed oral argument
unnecessary and reserved decision with respect to Defendants'
Motion to Dismiss and Plaintiff's Objections. III. DISCUSSION
Under the Younger abstention doctrine, federal courts are
typically required "to abstain from taking jurisdiction over
federal constitutional claims that involve or call into question
ongoing state proceedings." Diamond "D" Constr. Corp. v.
McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (citing Younger, 401
U.S. at 43-44). The Younger doctrine is based upon "the notion
that, in the ordinary course, `a state proceeding provides an
adequate forum for the vindication of federal constitutional
rights.'" Diamond, 282 F.3d at 198 (quoting Cullen v.
Fliegner, 18 F.3d 96, 103 (2d Cir. 1994)). Accordingly,
principles of federalism, comity, and mutual respect require
federal courts to abstain from interfering in ongoing state court
proceedings. Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir.
Abstention under Younger is generally required when the
following three conditions are met: "(1) there is an ongoing
state proceeding; (2) an important state interest is implicated
in that proceeding; and (3) the state proceeding affords the
federal plaintiff an adequate opportunity for ...