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April 9, 2004.

RICHARD D. KERN, Plaintiff,

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).


  A. Facts

  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

  A. Legal Standard

  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. 1999).

  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 ...

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