United States District Court, W.D. New York
April 9, 2004.
RICHARD D. KERN, Plaintiff,
FRANK J. CLARK, III, G. MICHAEL DRMACICH, and BARRY A. ZAVAH, Defendants.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
DECISION & ORDER
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
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.
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 judicial review of
the federal constitutional claims." Diamond, 282 F.3d at 198.
There are, however, certain cases in which the federal court
may set aside the Younger doctrine and intervene in an ongoing
state proceeding. Federal intervention is appropriate when there
has been "a showing of `bad faith, harassment or any other
unusual circumstances that would call for equitable relief.'"
Diamond, 282 F.3d at 198 (quoting Younger, 401 U.S. at 54).
For example, in a case involving an ongoing criminal prosecution
in state court, federal intervention may be warranted if the
prosecution "is brought in bad faith or is only one of a series
of repeated prosecutions." Younger, 401 U.S. at 49.
In the present case, there is no dispute that the initial
three-part Younger test has been satisfied. Thus, the question
presented is whether this Court should intervene in the ongoing
state court proceeding based upon one of the exceptions to
A plaintiff seeking "to head off Younger abstention bears the
burden of establishing that one of the exceptions applies."
Diamond, 282 F.3d at 198. Plaintiff argues that federal
intervention is warranted in this particular case because the
following three exceptions apply: (1) Defendants are prosecuting
him in bad faith, (2) this prosecution is only one in a series of
repeated prosecutions, and (3) extraordinary circumstances render
the state courts incapable of fairly and fully adjudicating
Plaintiff's federal claims.*fn4 This Court will address each
exception in turn.
1. Bad Faith Exception
Federal intervention in state court proceedings may be
warranted "in cases of proven harassment or prosecutions
undertaken by state officials in bad faith without hope of
obtaining a valid conviction. . . ." Diamond, 282 F.3d at 198
(quoting Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674,
27 L.Ed.2d 701 (1971)). For example, intervention is justified
where a "proceeding has been brought to retaliate for or to deter
constitutionally protected conduct, or where a prosecution or
proceeding is otherwise brought in bad faith or for the purpose
to harass." Cullen, 18 F.3d at 103-104. In the present case, the Second Circuit has noted that
Plaintiff could invoke the bad faith exception by demonstrating
that Defendants "aggressively prosecuted him in a string of weak
cases brought on behalf of [his] political enemies." Kern v.
Clark, 331 F.3d 9, 12 (2d Cir. 2003). For the reasons set forth
below, this Court finds that Plaintiff has failed to make such a
a. Harassment or Retaliation
In cases addressing the bad faith exception, the Second Circuit
has "emphasized that the subjective motivation of the state
authority in bringing the proceeding is critical to, if not
determinative of, this inquiry." Diamond, 282 F.3d at 199
(collecting cases). In other words, the plaintiff must "show that
the state proceeding was initiated with and is animated by a
retaliatory, harassing, or other illegitimate motive." Id.
In the instant case, Plaintiff has failed to show that
Defendants' actions were animated by a desire to harass, punish,
or prevent him from engaging in his political activities. All
three defendants testified that they never prosecuted Plaintiff
based upon a desire to harass, oppress, or retaliate against him.
(T. at 101, 141, 262). Critically, the undisputed evidence
demonstrated that Defendants never independently initiated
criminal charges against Plaintiff. Rather, each case was
commenced when an individual citizen either obtained a summons
from the Buffalo Police Department, filed a warrant card in
Buffalo City Court, or lodged a complaint with the District
Attorney's Office. On those occasions when the District
Attorney's Office elected to pursue the charges, Defendant
Drmacich first reviewed the accusatory instruments and determined
that they were legally sufficient. (T. 92). Drmacich testified
that he would not have prosecuted the cases if he felt that they
were not sufficient under prevailing law. (T. at 92). Indeed, a
screening system was eventually established that allowed the District Attorney's
Office to review complaints lodged against Plaintiff before they
were formally filed in the Buffalo City Court warrant clerk's
office. (T. at 51, 119). On several occasions, Drmacich reviewed
the complaints and refused to pursue charges against Plaintiff.
(T. at 96-97).
In addition, there is no evidence that Defendants acted at the
behest of Plaintiff's political enemies or prosecuted Plaintiff
because of his political activities or views. Drmacich testified
that he never discussed politics or political issues during his
meetings with the individuals who filed charges against
Plaintiff. (T. 87-92). With respect to the prosecution of the
Flynn charges, this testimony was corroborated by Mr. Flynn, who
stated that he never discussed politics during his meeting with
Drmacich. (T. at 156-57). Defendant Clark testified that he makes
no distinction between cases involving private citizen
complainants and those in which the complainant is a public
official. (T. at 258). Further, Clark testified that he knows
nothing about Plaintiff's political views. (T. at 240-41, 261).
As noted supra, all three defendants stated that the
prosecution of Plaintiff was not motivated by a desire to punish
him for his politics or to deter him from further protest
activities. (T. at 101, 141, 262).
b. Reasonable Expectation of Obtaining a Favorable Outcome
The Second Circuit has held that "for a federal plaintiff to
invoke the bad faith exception, `the party bringing the state
action must have no reasonable expectation of obtaining a
favorable outcome.'" Diamond, 282 F.3d at 199 (quoting
Cullen, 18 F.3d at 103). In the instant case, this Court finds
that Defendants did have a reasonable expectation of obtaining
favorable outcomes when they decided to pursue charges against
Plaintiff. In particular, Defendants currently have a reasonable
expectation of obtaining a favorable outcome with respect to the
prosecution of the Flynn charges the prosecution at the center
of the instant litigation. Before deciding to prosecute those
charges, Defendant Drmacich met with Flynn, who provided
audiotape recordings and papers documenting the alleged
harassment. (T. at 153). As such, when Drmacich decided to pursue
charges against Plaintiff, he was acting not merely upon Flynn's
allegations, but also upon physical evidence supporting those
allegations. Moreover, at least one other court has reviewed the
accusatory instruments and determined that the facts alleged, if
proven, would support convictions for second degree harassment
and aggravated harassment. In his decision of July 7, 2003, Judge
Pietruszka concluded that "[i]t can be reasonably . . . inferred
from the alleged evidentiary facts, with regard to both
accusatory instruments that [Plaintiff] intended to harass,
annoy, threaten or alarm [Flynn]." (Defendant's Exhibit A, p. 6).
In addition, two of the cases prosecuted against Plaintiff
proceeded to trial, with Plaintiff ultimately accepting an ACD.
(T. at 93-94, 127, 213-14). Although an adjournment in
contemplation of dismissal is not equivalent to a conviction
under New York law, it is also not considered to be a
determination in favor of the accused. Smith-Hunter v. Harvey,
734 N.E.2d 750, 753-54 (N.Y. 2000). This result strongly
indicates that Defendants prosecuted those cases with a
reasonable expectation of obtaining a favorable outcome.
Lastly, Plaintiff, the party bearing the burden of proof,
failed to introduce detailed evidence concerning the underlying
facts and ultimate dispositions in many of the cases prosecuted
by Defendants. As such, this Court cannot adequately evaluate the
merits of those cases to determine whether Defendants had a
reasonable expectation of achieving a favorable outcome. Plaintiff simply offered the bald assertion
that those cases were based upon "heavily perjured complaints."
(T. at 171). While it appears that some of the cases were
dismissed as facially insufficient, this is not necessarily
dispositive. Defendants Zavah and Clark testified that the
dismissal of charges on that basis is a common occurrence in
Buffalo City Court. (T. at 133, 259-60). Plaintiff did not
introduce any evidence tending to show that his cases were
dismissed at a higher rate than other cases involving similar
c. Personal Animus or Bias
Generally, the bad faith exception has been applied in cases
that involved a history of personal conflict, in which the
prosecution was motivated by personal animus or bias. For
example, the Second Circuit affirmed the application of the bad
faith exception in a case where the defendants had a "past
history of personal conflict" with the plaintiff and "their
corresponding desire `to do something about' him rose to the
`level of animus.'" Cullen, 18 F.3d at 104.
The Second Circuit has held that the bad faith exception should
not be applied in cases where there is no evidence to suggest
that the state court proceeding was motivated by bias or pursued
on a "strictly ad hominem" basis. See Diamond, 282 F.3d at
200-201; see also Schlagler, 166 F.3d at 442-44 (holding
that because plaintiff "failed to show that the actions of
[defendant] constituted anything other than a straightforward
enforcement of the laws of New York, his case does not fall
within the bad faith exception as set forth in Cullen").
In the present case, this Court finds that there has been no
showing of bias or personal animus on the part of Defendants.
Defendant Clark testified that he has never met Plaintiff and has no knowledge or opinion whatever regarding
Plaintiff's political views. (T. at 240-41, 261). While Defendant
Drmacich stated that he was familiar with Plaintiff's views, he
actually agrees with Plaintiff on a number of issues. (T. at 86,
266). Drmacich even approached Plaintiff at a local restaurant on
one occasion. (T. at 265). He explained that he had no personal
animosity toward Plaintiff and proposed a meeting designed to
foster a better relationship between the District Attorney's
Office and Plaintiff. (T. at 265-66). Although Defendant Zavah
stated that he was aware of Plaintiff's status as a "community
activist," there is no evidence to suggest that Zavah harbored
any bias against Plaintiff as a result. (T. at 117). Indeed,
Zavah prosecuted two criminal cases on behalf of Plaintiff,
i.e. cases in which Plaintiff was the victim and principal
complainant. (T. at 136-37). In one of those prosecutions, Zavah
successfully obtained a conviction of an individual on charges of
harassing Plaintiff. (T. at 137).
Plaintiff offers two arguments in support of his contention
that Defendants were motivated by bias. The first argument
relates to the destruction of a file maintained by Defendant
Drmacich.*fn5 Plaintiff contends that the destruction of
this file is evidence of Defendants' bad faith and animus. This
Court finds that argument unavailing. The mere fact that Drmacich
maintained a file regarding Plaintiff is not indicative of bias.
Zavah testified that such files were routinely maintained with
respect to defendants involved in multiple prosecutions. (T. at
144). Further, there is no evidence that Drmacich's decision to destroy the file was motivated by animus against Plaintiff.
Drmacich destroyed the file, along with other unrelated files, as
part of a routine office cleaning that occurred before this
litigation began. (Drmacich Affidavit, Docket No. 36). Plaintiff
offered no evidence to contradict this account. Moreover, there
is no suggestion that the file contained any unique materials,
i.e. documents that are not otherwise available to Plaintiff.
Furthermore, although Drmacich twice testified during the
evidentiary hearing, Plaintiff did not ask him any questions
about the existence of the file, its contents, or its
destruction. Rather, Plaintiff simply offers the conclusory
allegation that the destruction of the file is indicative of
bias. This is insufficient to overcome the application of the
Younger doctrine. See Kirschner v. Klemons, 225 F.3d 227,
236 (2d Cir. 2000) ("Mere conclusory allegations of bias are
insufficient to overcome Younger a plaintiff seeking to avoid
Younger must affirmatively demonstrate the justification for
application of an exception.").
Second, Plaintiff contends that Defendants' bad faith is
evidenced by the fact that his cases have received "unusual
treatment." In this regard, he notes that (i) Zavah and Drmacich
communicated with Clark regarding Plaintiff's cases, (ii) Michael
McHale, the Assistant District Attorney currently prosecuting the
Flynn charges, usually handles felony-level cases only, and (iii)
"someone" in the District Attorney's Office elected to appeal
Judge Murphy's decision dismissing the Flynn charges.
This Court finds Plaintiff's arguments unpersuasive. There is
no dispute that Zavah and Drmacich discussed Plaintiff's cases
with Clark on certain occasions. However, Drmacich testified that
he routinely provided Clark with updates concerning "high
profile" cases, i.e. cases that received media attention. (T.
at 21, 29). Plaintiff's cases were frequently covered by the
local news media. (T. at 32-33, 199, 218, 220-21). As such, the discussions with Clark do not suggest bias they simply indicate
that Defendants considered Plaintiff's cases to be "high
profile." This can hardly be considered prejudicial to Plaintiff,
who testified that he welcomes the media coverage of his cases.
(T. at 218).
With respect to Mr. McHale, there is no dispute that he has
been assigned to the prosecution of the Flynn cases. McHale
testified that he is a "Litigation Assistant," who typically
handles felony-level cases only. The prosecution of the Flynn
charges involves only misdemeanor offenses. However, McHale
testified that it was "not at all" unusual for a Litigation
Assistant to be assigned to a high profile case, even when it
involved the prosecution of misdemeanor charges in Buffalo City
Court. (T. at 165-66). Plaintiff did not offer any evidence to
contradict this testimony.
Lastly, it is undisputed that someone in the District
Attorney's Office elected to appeal Judge Murphy's decision
dismissing the Flynn charges. However, Plaintiff failed to
introduce any evidence tending to show that Defendants were even
involved in the decision to file that appeal. Moreover, even
assuming arguendo that Defendants did file the appeal, there is
nothing to suggest that the decision was motivated by anything
other than the belief that Judge Murphy had erred. Indeed, the
fact that a portion of Judge Murphy's ruling was ultimately
reversed demonstrates that this would have been a reasonable
conclusion to reach.
2. Series of Repeated Prosecutions
In Younger, the Supreme Court held that federal intervention
would be warranted where a state court criminal prosecution is
"brought in bad faith or is only one of a series of repeated
prosecutions." Kern, 331 F.3d at 12 (emphasis in original)
(quoting Younger, 401 U.S. at 49). This Court addressed the "bad faith" exception to Younger
supra in Section III.B.1. However, the Second Circuit has
suggested that an additional exception may be available.
Specifically, the appeals court stated that federal intervention
might be warranted "in a case involving a series of good-faith
repeated prosecutions." Kern, 331 F.3d at 12. Although the
Second Circuit noted that such an exception to Younger might
exist, it has not definitively ruled on that question. Id.
For purposes of the instant decision, this Court will assume
that a "series of repeated prosecutions" exception exists as an
independent exception to the Younger doctrine. As such, this
Court will now consider whether such an exception should be
applied in this case.
In Kern, the Second Circuit provided an example of a
situation in which a "series of repeated prosecutions" exception
might apply. The court stated that "[a]n example might be
repeated state-court prosecutions wherein, for procedural
reasons, a defendant was unable to raise defects of a
Constitutional nature." Kern, 331 F.3d at 12 n. 2. Clearly, the
present case does not fit within the example identified by the
Second Circuit. There is no evidence to suggest that Plaintiff
has been unable to raise defects of a Constitutional nature
during the state court proceedings.
Further, this Court finds that the language used in Younger
suggests that this exception is not applicable to the present
case. In Younger, the Supreme Court held that federal
intervention might be warranted in a case involving a "series
of repeated prosecutions." 401 U.S. at 49 (emphasis added). The
use of the qualifying adjectives "series" and "repeated" suggests
that the Supreme Court sought to carve out a narrow exception
applicable to a small number of unusual cases. In other words,
the Court was not endorsing federal intervention in all cases involving
multiple prosecutions of the same individual. Such a rule would
be inconsistent with the Court's admonition that "the normal
thing to do when federal courts are asked to enjoin pending
proceedings in state courts is not to issue such injunctions."
Id. at 45 (emphasis added). The Younger exceptions are
intended to apply only in cases presenting "unusual
circumstance[s]. . . ." Id. at 54 (emphasis added).
The present case clearly involves multiple prosecutions of the
same individual Plaintiff has been prosecuted by the Erie
County District Attorney's Office several times over the past few
years. Thus, the question becomes whether those prosecutions are
related to a degree sufficient to be considered a "series of
repeated prosecutions" under Younger. In other words, the issue
is whether the prosecutions are unusual in that they have an
atypical combination of common elements.
For the reasons set forth below, this Court finds that the
prosecutions are not sufficiently related to override the strong
policy favoring abstention. As noted above, the prosecutions
occurred over a period spanning approximately eight years. (T. at
186). The various cases were initiated by at least eight
different individuals and a municipal authority. (T. 34-35, 117,
173-87, 201-205, 212). Some of the complainants were public
officials, while others were not. (T. 175-78, 181-83, 201-202).
With respect to one of the charges, the Buffalo Police Department
issued a summons and arrested Plaintiff (T. 205-06). Other
charges were initiated when the complainant filed a warrant card
in the Buffalo City Court warrant clerk's office. (267-68). Still
others were filed only after the complainants consulted with the
District Attorney's Office. (T. at 51, 96-97, 119). While some of
the charges were dismissed, others resulted in convictions and
ACDs. (T. at 59, 88, 93-94, 187, 204-205, 210-16). Some of the charges involved allegations of harassment,
while others concerned criminal trespassing and stalking. (T. at
59, 88, 93-94, Plaintiff's Exhibits B, C, D, E, F).
This Court is mindful that these prosecutions are, in a sense,
related.*fn6 Obviously, all of the cases involved Plaintiff
and at least one of the defendants. (T. at 204-205, Plaintiff's
Exhibits B, C, D, E, F). Some of the complainants were family
members or co-workers of other complainants. (T. 175-77). In
addition, all of the cases appear to involve behavior that
Plaintiff considers to a form of political activism conduct
that he described as "civil disobedience" and "vigilantism." (T.
at 203, 220-21).
However, as noted above, the question is not simply whether the
prosecutions are related. Rather, the issue is whether they have
an unusual combination of common elements such that they can be
considered a "series of repeated prosecutions" under Younger.
Here, the common elements are not unique. By definition, every
case involving multiple prosecutions involves prosecutions of the
same subject. Further, it is not uncommon for one or two
assistant district attorneys to repeatedly handle the same types
of cases or cases involving the same defendant. Finally,
Plaintiff testified about the modus operandi that he employs to
advance his political views. (T. 189-97). Thus, the fact that
each of these prosecutions involves allegations of similar
conduct is rendered less significant by virtue of the fact that
Plaintiff frequently engages in such conduct.
In sum, even if there is a "series of repeated prosecutions"
exception to Younger, this Court finds that application of that
exception to the present case would not be warranted. 3. Extraordinary Circumstances
As noted above, although abstention is strongly favored under
Younger, federal intervention may be warranted "upon a showing
of `bad faith, harassment, or any other unusual circumstances
that would call for equitable relief." Diamond, 282 F.3d at 198
(emphasis added) (quoting Younger, 401 U.S. at 54). This Court
having already addressed the issues of bad faith and harassment,
the only remaining exception is the "unusual" or "extraordinary"
That exception has been described as follows:
Only if `extraordinary circumstances' render the
state court incapable of fairly and fully
adjudicating the federal issues before it, can there
be any relaxation of the deference to be accorded to
the state criminal process. The very nature of
`extraordinary circumstances,' of course, makes it
impossible to anticipate and define every situation
that might create a sufficient threat of such great,
immediate, and irreparable injury as to warrant
intervention in state criminal proceedings. But
whatever else is required, such circumstances must be
`extraordinary' in the sense of creating an
extraordinarily pressing need for immediate federal
equitable relief, not merely in the sense of
presenting a highly unusual factual situation.
Kugler v. Helfant, 421 U.S. 117
, 124-25, 95 S.Ct. 1524,
44 L.Ed.2d 15 (1975).
The Supreme Court has twice provided examples of circumstances
that qualify as extraordinary for purposes of this exception.
First, federal intervention is warranted in cases where the state
statute to be applied in the criminal proceeding is "flagrantly
and patently violative of express constitutional prohibitions in
every clause, sentence and paragraph, and in whatever manner and
against whomever an effort might be made to apply it." Younger,
401 U.S. at 53-54. Second, the extraordinary circumstances
exception has been applied in cases where the state
administrative agency "was incompetent by reason of bias to
adjudicate the issues pending before it." Gibson v. Berryhill,
411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). For
the sake of convenience, this Court will refer to these two examples as the "Supreme Court examples."
This Court finds that neither of the Supreme Court examples
applies to the facts of the present case. There is no argument
that New York's harassment law is unconstitutional.*fn7 In
addition, there has been no showing of bias on the part of the
Buffalo City Court.*fn8 As discussed supra, Plaintiff has
also failed to establish that Defendants harbored any bias or
animosity toward him.
As such, this Court finds itself in a situation similar to that
addressed by the Second Circuit in Diamond. In that case, the
Second Circuit found that neither of the Supreme Court examples
applied to the facts presented. Diamond, 282 F.3d at 201. The
appeals court then considered whether the facts nevertheless fit
within the definition of "extraordinary circumstances." In that
regard, the Second Circuit analyzed whether there was (a) "a
state remedy available to meaningfully, timely, and adequately
remedy the alleged constitutional violation" and (b) whether
there was evidence that "the litigant will suffer `great and
immediate' harm if the federal court does not intervene."
Diamond, 282 F.3d at 201 (citation omitted). To invoke the
extraordinary circumstances exception, a plaintiff must introduce
evidence sufficient to establish both of these elements. Id In the instant case, there is no evidence to suggest that the
New York courts cannot afford Plaintiff an adequate remedy.
Plaintiff argues that the Flynn charges are an attempt to
criminalize his First Amendment activity. There is no evidence to
suggest that he cannot raise that argument in the state court
proceeding. (Indeed, it appears that he already has). Because
Plaintiff has the ability to seek judicial review of his
constitutional claims in the state courts, this Court must
"assume that state procedures will afford an adequate remedy, in
the absence of unambiguous authority to the contrary." Id. at
202 (quoting Pennzoil v. Texaco, 481 U.S. 1, 15,
107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)). As outlined above, this Court finds
that Plaintiff has failed to introduce any unambiguous evidence
or authority to the contrary.
The Younger abstention doctrine embodies "bedrock principles
of federalism." Diamond, 282 F.3d at 193. It is based upon "the
notion that, in the ordinary course, `a state proceeding provides
an adequate forum for the vindication of federal constitutional
rights.'" Id. (citation omitted). As such, federal intervention
in an ongoing state proceeding is an extraordinary remedy that is
only justified in a narrow class of cases. Id. The party
seeking to obtain that remedy bears the burden of establishing
that intervention is warranted. Id.
In that regard, it is important to note that the issue
currently before this Court is not whether Plaintiff is guilty
of the conduct alleged in the Flynn charges. Further, the issue
before this Court is not whether the prosecution of the Flynn
charges infringes upon Plaintiff's right to free speech. Rather,
the question presented by Defendants' motion is whether
Plaintiff's constitutional claim should be decided by a federal
court or a state court. As noted above, because of the ongoing state proceeding, there is
a strong presumption that Plaintiff's claim should be decided in
the state court. Plaintiff bears the burden of establishing that
the state court does not provide an adequate forum for resolution
of his claim and vindication of his rights.
For the reasons outlined above, this Court finds that Plaintiff
has not met his burden. Plaintiff failed to establish that
Defendants' prosecution of the Flynn charges is motivated by bad
faith, harassment, or any other improper motive. Rather, the
evidence demonstrates that the prosecution of the Flynn charges
involves nothing more than a "straightforward enforcement of the
laws of New York. . . ." Schlagler, 166 F.3d at 443. In
addition, Plaintiff has not proven that this prosecution is
simply one in "a series of repeated prosecutions," as that phrase
is defined for purposes of Younger abstention. Finally,
Plaintiff failed to establish that this case presents an unusual
or extraordinary set of circumstances justifying federal
intervention. As such, this Court finds that the ongoing state
court proceeding provides Plaintiff with an adequate forum for
the vindication of his First Amendment rights. Therefore,
abstention is mandatory under the Younger doctrine. Defendants'
Motion to Dismiss is granted.
IT HEREBY IS ORDERED that Defendants' Motion to Dismiss (Docket
No. 6) is GRANTED.
FURTHER, that this Court accepts the recommendation set forth
in Judge Scott's Report and Recommendation (Docket 45) for the
reasons outlined in the instant Decision and Order. FURTHER, that Plaintiff's Objections to Judge Scott's Report
and Recommendation (Docket No. 46) are denied.
FURTHER, that the Clerk of the Court shall take the steps
necessary to close this case.