Summary
hearing unnecessary where it would not assist court in deciding issues presented
Summary of this case from Adrian v. Westar EnergyOpinion
Case No. 01-4136-SAC.
October 11, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the pro se plaintiff's motion for a temporary restraining order (Dk. 5) that would bar the defendant City of Lawrence, Kansas, and the defendant Jerry Little from prosecuting him on charges pending in the Municipal Court of Lawrence, Kansas, until his constitutional claims in this 42 U.S.C. § 1983 civil rights action have been resolved. The plaintiff brings this civil rights action alleging his constitutional rights were violated by a traffic stop occurring on August 10, 2000, by the prosecution for that traffic offense, and by a series of incidents between January 22, 2000, and September 25, 2001, involving the defendant Kenneth Farrar, a police officer with the City of Lawrence, Kansas. The plaintiff hand delivered this motion to the defendants' attorney, Gerald Cooley, on October 2, 2001. As directed by the court, the defendants filed their written response to the motion on October 5, 2001. Having reviewed all matters submitted, the court finds that a hearing would not assist the court in deciding the issues presented and summarily denies the plaintiff's motion for a temporary restraining order ("TRO").
BACKGROUND FACTS
On January 22, 2000, the plaintiff was stopped for speeding. Besides citing him for speeding and driving without a valid license, Officer Farrar and another officer arrested the plaintiff and booked him into the Douglas County Jail on charges of battery against a law enforcement officer, obstruction of legal duty, and possession of marijuana. The plaintiff alleges he was "gravely and barbarously injur[ed]" during this traffic stop which has "spawned" litigation, including the instant suit. (Dk. 1). The State of Kansas filed criminal charges, State v. McCormick, Case No. 00-CR-90 in the District Court of Douglas County, Kansas, based on this traffic stop. The State then dismissed this case but refiled it as Case No. 00-CR-604 on May 1, 2000, adding a felony charge of possession of marijuana. On April 28, 2000, the plaintiff filed a lawsuit in the District Court of Douglas County, Kansas, alleging civil rights violations during the January traffic stop.
On his way to a local Lawrence bakery around 1:00 a.m. on August 10, 2000, the plaintiff noticed a police car following him when he stopped at the traffic light at the intersection of 9th Street and Tennessee. The plaintiff alleges the police car was tailgating him before he reached the intersection. After the light turned green, the plaintiff began driving through the intersection when the police car activated its emergency lights signaling the plaintiff to pull over. The plaintiff drove into a convenience store parking lot, and Officer Farrar approached him asking for his license, registration and proof of insurance. The plaintiff "immediately informed Farrar that plaintiff was going to file claims against Farrar for harassment, and possibly a criminal complaint for intimidation of a witness." (Dk. 1, ¶ 8). Asking why he had been stopped, the plaintiff was told he had failed to stop behind the intersection's cross-walk. The "[p]laintiff denied Farrar's allegations and demanded that Farrar leave plaintiff alone." Id. Farrar raised his voice and eventually the plaintiff produced the requested paperwork. The officer ran the computer checks and issued plaintiff a citation for failure to yield at a stop signal. The citation notified the plaintiff to appear in municipal court on August 28, 2000.
The plaintiff intentionally failed to appear before the court on August 28, 2000. The municipal court mailed on October 9, 2000, to the plaintiff's last known address notice informing him that if he did not appear or pay all fines, court costs and penalties related to his traffic citation on August 10, 2000, then his driver's license would be suspended. Because the plaintiff never complied with the terms of that notice, the municipal court notified the State of Kansas Department of Revenue which suspended the plaintiff's license on December 3, 2000.
On December 15, 2000, the plaintiff filed a federal civil rights lawsuit, McCormick v. State of Kansas, et al., No. 00-4209-RDR, in the United States District Court for the District of Kansas seeking a permanent injunction against the criminal prosecution in Case No. 00-CR-604 proceeding in the District Court of Douglas County, Kansas. The Honorable Richard Rogers filed an order January 5, 2001, that denied the plaintiff's motion for a temporary restraining order on the basis of Younger abstention. After conducting an evidentiary hearing, Judge Rogers also denied the plaintiff's motion for a preliminary injunction relying again on Younger abstention.
On March 8, 2001, while leaving Lawrence for Topeka, the plaintiff was stopped for driving with a suspended license. The citation notified him to appear on March 28, 2001, and the plaintiff again failed to appear. On April 30, 2001, the municipal court judge issued a warrant for the plaintiff's arrest. The plaintiff's vehicle was stopped on June 1, 2001, and he was arrested on this warrant and cited again with driving on a suspended license. The plaintiff posted bond that secured his appearance in municipal court on June 27, 2001. He appeared on that date and a trial date of August 30, 2001, was given. At the plaintiff's request, the trial was continued by agreement to October 12, 2001. According to the defendant Gerard Little, supervising prosecutor for the City of Lawrence, there are six separate and pending charges against the plaintiff with three directly related to the citation issued on August 10, 2000. The three are: failure to yield at a traffic-control device (August 10, 2000), driving with a suspended license (March 8, 2001), and driving with a suspended license (June 1, 2001).
TRO STANDARDS
"The essence of a temporary restraining order is its brevity, its ex parte character, and (related to the second element) its informality." Geneva Assur. Syndicate, Inc. v. Medical Emergency Services Associates, 964 F.2d 599, 600 (7th Cir. 1992). A TRO preserves the status quo and prevents immediate and irreparable harm until the court has an opportunity to pass upon the merits of a demand for preliminary injunction. These purposes serve as threshold requirements to a TRO request. Beyond these two threshold showings, a movant also must establish the following requirements which are the same for a preliminary injunction: (1) it will suffer irreparable injury unless the temporary relief issues; (2) the threatened injury to the movant outweighs whatever damage the temporary relief may cause the opposing party; (3) the temporary relief would not be adverse to the public interest; and (4) there is a substantial likelihood that the movant will eventually prevail on the merits. City of Chanute v. Kansas Gas and Elec. Co., 754 F.2d 310, 313 (10th Cir. 1985). A movant's burden is particularly heavy when the injunctive relief sought would in effect grant the movant a substantial part of the relief the plaintiff would recover upon a trial of the merits. SCFS ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991) (such injunctive relief "is similar to the `Sentence first — Verdict Afterwards' type of procedure parodied in Alice in Wonderland, which is an anathema to our system of jurisprudence").
ABSTENTION
Calling the plaintiff's civil rights suit "a pre-emptive strike against his prosecution in state court," the defendants contend the same Younger abstention that doomed the plaintiff in his prior federal lawsuit bars the plaintiff's instant request for injunctive relief. (Dk. 8, p. 11). In his motion for a TRO and supporting memorandum, the plaintiff makes no mention of Younger abstention and advances no arguments opposing its application here. This is noteworthy because the plaintiff waited to file his present suit just over two weeks before the scheduled trial in municipal court and because less than eight months ago the plaintiff faced the same doctrine in a similar federal civil rights action and lost as a result of it. Considering the plaintiff's delay in bringing this suit and his experience with Younger abstention, the court will not await any further comment from the plaintiff and decide the motion on the matters that have been alleged and presented.
Though having a "virtually unflagging obligation to exercise the jurisdiction granted them," federal courts "must on rare occasions abstain from exercising their jurisdiction in order to avoid undue interference with states' conduct of their own affairs." J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999) (quotations and citations omitted). One of the several well-established situations for abstention is found in the holding of Younger v. Harris, 401 U.S. 37, 56 (1971), that federal courts are not to enjoin pending state court criminal proceedings except in certain, narrow circumstances. "Younger abstention dictates that federal courts not interfere with state court proceedings by granting equitable relief — such as injunctions of important state proceedings or declaratory judgments regarding constitutional issues in those proceedings — when such relief could adequately be sought before the state court." Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999).
Younger requires a federal court to abstain when: "(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings `involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.'" Amanatullah v. Colorado Bd. of Medical Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999) (quoting Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997), cert. denied, 523 U.S. 1005 (1998)). "`Younger abstention is non-discretionary, it must be invoked once the three conditions are met, absent extraordinary circumstances.'" Weitzel v. Dept. of Commerce of State of Utah, 240 F.3d 871, 875 (10th Cir. 2001) (quoting Amanatullah, 187 F.3d at 1163). "Since this case involves ongoing state criminal proceedings in which the state's interest in enforcing its criminal statutes is at stake and plaintiff has the opportunity to raise constitutional issues and appeal those issues if he believes they are wrongly decided, abstention under Younger would appear proper in this case." McCormick v. State of Kansas, No. 00-4209-RDR, 2000 WL, at (Kan. Jan. 5, 2000). The court finds that all three requirements are met here.
The Younger abstention doctrine is not without its own exceptions. Federal courts may "enjoin a pending state criminal prosecution provided that it was (1) commenced in bad faith or to harass, (2) based on a flagrantly and patently unconstitutional statute, or (3) related to any other such extraordinary circumstance creating a threat of `irreparable injury' both great and immediate." Phelps v. Hamilton, 59 F.3d 1058, 1064 (10th Cir. 1995). The Tenth Circuit in Phelps observed:
In considering whether a federal plaintiff meets one of the exceptions to Younger abstention, federal courts must balance the necessity of protecting an individual's exercise of his or her constitutional rights with a prosecutor's discretion in selecting certain actions for criminal prosecution. Moreover, federalism concerns counsel against federal court intervention into state prosecutions so that the state judiciary will have the opportunity to correct any prosecutorial violations of an individual's rights. These twin rationales of respecting prosecutorial discretion and federalism explain why the exceptions to Younger only provide for a "very narrow gate for federal intervention." Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir. 1993).59 F.3d at 1064 (footnotes omitted). The plaintiff "has a heavy burden of proof in order to overcome the bar of Younger abstention." Id. at 1066.
Of the three exceptions, the plaintiff's allegations arguably implicate only one of them: bad faith prosecution. In his complaint, he alleges retaliatory, vindictive and selective prosecution. As for the other two exceptions, neither the plaintiff's complaint nor his motion offers any allegations that would support their possible application here. The court will focus on whether the plaintiff's allegations would sustain a finding that the municipal prosecution was commenced in bad faith.
In deciding whether a prosecution has been commenced in bad faith, courts evaluate the following three factors:
1) whether it was frivolous or undertaken with no reasonably objective hope of success, see Kugler v. Helfant, 421 U.S. 117, 126 n. 6 (1975) (explaining that a bad faith prosecution "generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction"); (2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights, see Younger, 401 U.S. at 48 (quoting Dombrowski v. Pfister, 380 U.S. 479, 482 (1965)); and (3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions, cf. Younger, 401 U.S. at 49. These factors are important because the cost, anxiety, and inconvenience of defending against a single prosecution brought in good faith is not enough to establish the "great and immediate" threat of irreparable injury necessary to justify enjoining pending state proceedings.Phelps, 59 F.3d at 1065 (footnotes omitted).
The plaintiff does not allege that the municipal prosecutions lack any reasonable prospect of being successful. Rather than alleging that he properly stopped at the traffic light on August 10, 2000, the plaintiff accuses Officer Farrar of "falsely and unlawfully" seizing him and then makes apparent excuses for his driving, "[the] obscure cross-walk `line' was not visible to plaintiff at one o'clock in the morning and which obscure `line' plaintiff could not pay attention to due to his distraction at being `tailgated' by Farrar." (Dk. 1, p. 6). As for the charges of driving with a suspended license, the plaintiff essentially admits in his complaint and memorandum that he intentionally did not appear for the hearing on the August 10th first traffic infraction, that his driver's license was suspended as a result, and that he operated his vehicle with the suspended license. Finally, the different traffic charges have been consolidated into a single proceeding scheduled for October 12, 2001. In short, the plaintiff alleges nothing to suggest that the prosecution has been commenced with no reasonably objective hope of success or that the prosecution has been conducted in a way to harass him.
To prevail on his allegation of retaliation, the plaintiff "must prove that `retaliation was a major motivating factor and played a dominant role in the decision to prosecute.'" Phelps v. Hamilton, 59 F.3d at 1066 (quoting Smith v. Hightower, 693 F.2d 359, 367 (5th Cir. 1982)). The court is not persuaded that there is a substantial likelihood the plaintiff can prove retaliation is the major motivating factor behind the municipal prosecutions. Other than the August 10th infraction following on the heels of the plaintiff's civil lawsuit against Officer Farrar, the plaintiff alleges little in proof of a retaliatory motive. His conclusory allegations and general protestations are clearly insufficient to sustain any finding that the tickets were issued as part of an effort to harass him or that the tickets were otherwise issued in bad faith. More importantly, the plaintiff alleges nothing to support a finding of bad faith in the defendant Little's independent decision to prosecute the plaintiff on the traffic citations.
Even assuming the plaintiff could come forth with the facts necessary to show a substantial likelihood of success on the merits, the record simply does not indicate that the plaintiff will suffer the sort of irreparable harm which would justify granting immediate equitable relief. The state courts provide the plaintiff with a full and adequate avenue for vindicating his asserted rights. For all these reasons, the court finds that the plaintiff is unable to show he is entitled to a TRO.
IT IS THEREFORE ORDERED that plaintiff's motion for a temporary restraining order (Dk. 5) is denied.