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NAKED CITY, INC. v. AREGOOD

August 21, 1987

NAKED CITY, INC., DICK DROST, MELINDA BOHANON, FLORENCE GAY SLATER, PLAINTIFFS,
v.
GREG AREGOOD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allen Sharp, Chief Judge.

MEMORANDUM AND ORDER

I.

This case is before the court on the plaintiffs', Naked City, Inc., Dick Drost, and Florence Gay Slater, request for preliminary injunctive relief. The complaint was filed on May 22, 1987. On June 18, 1987, the plaintiffs requested a preliminary injunction. On June 22, 1987, the court scheduled an evidentiary hearing for July 10, 1987, and that hearing was rescheduled for July 30, 1987. A subsequent request for a temporary restraining order was filed on July 17, 1987. Some of the thirty-seven named defendants filed a response on July 24, 1987. In addition, two defendants filed an answer and alleged that the plaintiffs failed to state a claim upon which relief could be granted. This memorandum is limited solely to the issue of preliminary injunctive relief and is not intended to make any final determination of the merits of any of the plaintiffs' claims.

The facts relevant to the requested preliminary injunction are derived solely from the verified complaint, sworn affidavits, and certified copies of a plea agreement and orders entered in several state court proceedings. None of the parties called any witnesses or presented evidence during the July 30, 1987, hearing.*fn1 During that hearing the plaintiffs' counsel stated that he believed that the facts could be stipulated to, but no such stipulation was entered or made orally.

The record in this case discloses the following facts relevant to the issue of preliminary injunctive relief. The county and state police, through the alleged use of undercover investigators, "raided" the three hundred and sixty acre tract of land in Newton County referred to as Naked City several times. The plaintiffs allege that personal property in the form of tapes and equipment have been taken during the "raids". Specifically the plaintiffs allege Seventy-five Thousand Dollars ($75,000) worth of equipment was taken on April 14, 1980. In addition, the "joint" affidavit alleges that a friend of a friend of the plaintiffs said that the sheriff sold the plaintiffs' equipment. The plaintiffs complain that they did not receive notice of the sale. As a result of those "raids" and investigations, the plaintiffs, Richard Drost and Naked City, Inc., were charged with several violations of Indiana Criminal Statutes under cause numbers SPRS 81-77, SPRS 81-78, SPRS 85-58, SPRS 85-81 and SPRS 86-43. On January 13, 1982, each defendant entered a guilty plea to certain misdemeanor charges and one Class D felony charge under cause numbers SPRS 81-77 and SPRS 81-78. The defendants were sentenced on February 16, 1982. The defendants appealed seeking modification of the sentence. See, Naked City, Inc. v. State of Indiana, 460 N.E.2d 151 (Ind. App. 3 Dist. 1984). The Indiana Court of Appeals affirmed the convictions but reversed and remanded for resentencing. Subsequently, the defendant, Drost, filed a petition for post-conviction relief which was granted on November 26, 1984. On March 24, 1986, a plea agreement was filed in the Newton County Superior Court under cause numbers SPRS 81-77, SPRS 81-78, SPRS 85-58 and SPRS 85-81. That plea agreement was signed by Richard Drost individually and as agent for Naked City, Inc., as well as Richard Drost's attorneys, Frederick Cohn, Patricia Riley and John B. Wilson. In addition, the prosecuting attorney R. Steven Ryan signed the plea agreement. Paragraphs nineteen (19), twenty-three (23) and twenty-four (24) of the plea agreement state:

  19. That defendant hereby states that at the time of the
  execution of this agreement, he is not under the influence of
  intoxicating liquors, drugs, or medication which might effect
  (sic) his comprehension and understanding of the terms herein
  stated.
  23. The defendant hereby acknowledges that this plea agreement
  is entered into knowingly, voluntarily, intelligently, and that
  no threats or promises other than those contained herein have
  been made to him to force him to do so; that he has full
  knowledge of its consequences and has been advised by counsel
  of his constitutional right; to trial by Court or jury,
  presumption of innocence, to have the charges to be proved
  against him beyond a reasonable doubt, to the right to remain
  silent, to see and hear the witnesses against him and to
  cross-examine them, the right to subpoena witnesses on his
  behalf, the right to assistance of counsel at all important
  stages, including appeal, if convicted by trial, and the right
  to pauper counsel if he cannot afford one, all said rights
  being guaranteed to the defendant in regard to each and every
  charge.
  24. The defendant and his counsel state that they have fully
  and completely discussed the alternatives to trial and that
  their decision to enter into this plea agreement is made by the
  defendant of his own free will, without duress or coercion and
  with the advise (sic) and assistance of his attorneys.

On the same day the same parties signed and filed in open court an "Addendum to Plea Agreement". Subsequently, Permanent Pro Tem Judge, Stephen Bower, entered an Order on April 1, 1986, which is consistent with the plea agreement. That Order sentenced the defendants, Richard Drost and Naked City, Inc., to a period of confinement of "one (1) year in each of the above ten (10) charges. The sentences of imprisonment shall be served consecutively." Further, that Order held that "[s]aid sentences were suspended and the defendant is placed on probation for said period of time upon the following terms and conditions." The terms and conditions which are alleged to be relevant in this case are:

  8. That the business known as Naked City, Inc., in Roselawn,
  Newton County, Indiana, be closed instanter. The big sign in
  front shall be painted off by Monday evening, March 31, 1986.
  10. Further, the Defendant, Richard Drost, voluntarily agrees
  to remain out of the State of Indiana for a period of Ten (10)
  years from the date of this sentence, as a condition of
  probation. Provided, that in an emergency situation and upon
  prior approval of the Newton Superior Court, the Defendant may
  return to the State of Indiana for a reasonable period of time
  as directed by said Court.

Apparently, Judge Bower's Order, sentence and probation have never been appealed in the state courts of Indiana although appellate remedies are readily available.

The plaintiffs premise their request for preliminary injunctive relief upon "the 41 page complaint filed 22 May 1987," a "joint" affidavit of plaintiffs Dick Drost and Florence Slater, an affidavit of an individual named Donald Penden which was accompanied by photographs of unknown origin, and "evidence and testimony to be presented at the hearing." However, there was no evidence or testimony presented at the hearing. A brief summary of the counts which remain*fn2 in the forty-one (41) page complaint is attached as Appendix A. The "joint" affidavit which the plaintiffs submitted is attached as Appendix B. It is readily apparent from examination of Appendices A and B that a substantial portion of the allegations in the complaint and statements in the affidavit are either hearsay or conclusory statements unsupported by fact.

In response to the plaintiffs' allegations and affidavits, some of the defendants*fn3 filed certified copies of court orders and opinions, and affidavits. Two of the defendants filed a thorough answer denying the plaintiffs' allegations and raising the following defenses: failure to state a claim pursuant to 12(b)(6); federal and state statute of limitations; these two defendants were not acting under color of state law; laches; improper venue; these two defendants acted in good faith and in lawful exercise of their rights under the First Amendment of the United States Constitution; and that the plaintiffs' complaint is without merit, frivolous, vexatious and constitutes harassment against these two defendants.

The relief sought, as expressed by plaintiffs' counsel during the evidentiary hearing and in the proposed order submitted with the request for a preliminary injunction is as follows:

  a. that the Sheriff, the Indiana State Police, all persons who
  purchased property at the June 1987 sale or otherwise received
  property seized from Naked City during the last 7 years return
  the property (including video tapes and equipment valued at
  approximately $50,000) to Naked City within 3 days of receipt
  of notice of this order;
  b. that the Sheriff of Newton County account in writing to
  Attorney Douglas Palaschak within 4 days for all property
  seized from Naked City in the last 7 years;
  c. that the Sheriff and Indiana State Police refrain from
  entering Naked City (Naked City meaning the approximately 300
  acres in section 15, township 31 North, Range 8 West of the 2nd
  principal meridian in Lincoln Township, Newton County Indiana)
  without a constitutionally sound search warrant;
  d. that the Sheriff and Indiana Police treat Naked City as
  private property respecting the 4th amendment rights of owners
  and guests of Naked City;
  e. that the Sheriff and Indiana Police refrain from interfering
  with the exhibition of commercially available pornography to
  consenting adults at Naked City the court finding that such
  exhibition is

  neither obscene, commercial, nor public and hence beyond the
  purview of the courts;
  f. that the Sheriff and Indiana Police refrain from spying on
  Naked City guests and owners through the use of undercover
  police or informants absent constitutionally sound
  court-ordered warrants;
  g. that the Sheriff and Indiana Police refrain from interfering
  in private consensual lewd activity involving only adults in
  the privacy of Naked City;
  h. that the Sheriff and Indiana Police immediately provide Dick
  Drost with a copy of the tape filmed by police at the raid of 2
  May 1987;
  i) that Newton County Attorney, Newton County Judges, and the
  Newton County Board of Commissioners and their agents and
  cohorts immediately cease further prosecution of cause number
  56A03-8606-CV-157 or any other case regarding zoning violations
  against Drost, Naked City, or Drost's agents, or assignees
  unless the prosecutors also prosecute similar businesses
  (including the defendant Ponderosa Sun Club) similarly;
  j) that Newton County Attorneys (part time and full time)
  (including defendants Blaney, Casey, Ryan, Falk, and their
  partners, employees, and agents) immediately stop taking
  private cases from Betty Porzell, the Ponderosa and all other
  Drost adversaries;
  k) that the Newton County Welfare Agency immediately provide
  Drost with the address and telephone number of Melinda Bohanon;
  l) that Newton County Sheriff Deputies, and Indiana State
  Police stop providing security at Ponderosa events unless
  security is offered to Naked City on the same terms;
  m) that the Newton County Sheriff and the Indiana State Police
  provide notice of this order to their appropriate officers
  within 3 days of receipt of notice of this order;
  n) that the Newton County Sheriff provide to Douglas Palaschak
  within 3 days of receipt of this order an accounting of the
  June 1987 sale of property seized from Naked City, such
  accounting to include names and addresses of purchasers, method
  of notice of sale, items sold, and purchase price;
  o) that Newton County Attorneys, Newton County Courts, Newton
  County Judges, Newton County Sheriff (and deputies), Indiana
  State Police, and their agents and cohorts refrain from
  arresting, stopping, detaining, assaulting, talking to, or
  otherwise interfering with parties and attorneys in this action
  while they are going to and from court, Naked City, and their
  homes during the duration of this case (except that Newton
  County Attorneys may communicate with plaintiff Attorneys and
  police may not deny protection to plaintiff when requested by
  plaintiffs);
  p) that Newton County Attorney, Newton County Courts, Newton
  County Judges, Newton County Sheriff and Deputies, and Indiana
  State Police permit Dick Drost to visit his dying Father, Albin
  Drost at Naked City until Albin dies pursuant to the emergency
  provisions of Dick's plea bargain;
  q) that Newton County Courts, Judges, and Sheriffs (and
  deputies), and Indiana Police refrain from punishing Dick for
  visiting Albin, Dick's dying father;
  r) that Newton County Attorneys, Newton County Judges, Newton
  County Sheriffs (and deputies), and Indiana State Police
  refrain from interfering with Dick's attendance at Naked City,
  Indiana whenever he is accompanying his caretaker, Florence
  Slater, while Florence is preparing for activities at Naked
  City or while Florence is conducting the Miss Nude World
  Contest or any other event a Naked City (also known as Adam and
  Eve);
  s) that all Indiana state court judges and Indiana state and
  local police refrain from arresting, detaining, touching,
  imprisoning, or otherwise interfering with Dick Drost while he
  is in Indiana or any other state pending a determination of the
  validity of the court-imposed banishment from the state of
  Indiana and the

  validity of the court-imposed forfeiture of Naked City;
  t) that the Newton County bench consider the constitutional
  rights of plaintiffs herein when considering the merits of
  future search warrants for Naked City and that whenever
  possible the bench permit argument by plaintiffs herein prior
  to issuance of search warrants;
  u) that Newton County Judge Daniel Molter remove himself from
  any case concerning Naked City, Dick Drost, Florence Slater, or
  their agents or assignees; and
  v) that the Newton County Court change the guilty pleas for the
  Naked City eleven (arrested 2 May 1987) to no contest pleas or
  in the alternative that the Newton County Court order a new
  arraignment with a defense counsel who is not biased against
  Naked City;
  w) that the Newton County Court immediately return the $5000
  cash bond and $45,000 promissory note to Dick Drost and
  Florence Slater, the injunction having been overturned by the
  court of appeals on 14 May 1987 at the request of Attorney Fred
  Cohn; and
  x) that the Newton County Court immediately return to Florence
  Slater the $2500 bond posted for 5 of the Naked City 11, the
  case having been completed and the defendants having already
  been sentenced. This order is to remain in effect until further
  order of this court.

II.

The factors for analyzing a motion for preliminary injunctive relief, although the method of analysis and appellate review have been the subject of some debate in this circuit, have remained constant. See, Chicago Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732 (7th Cir. 1987); Illinois Psychological Ass'n v. Falk, 818 F.2d 1337 (7th Cir. 1987); Beermart, Inc. v. The Stroh Brewery Co., 804 F.2d 409 (7th Cir. 1986); Adams v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, 801 F.2d 968 (7th Cir. 1986); Darryl H. v. Coler, 801 F.2d 893(7th Cir. 1986); A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903 (7th Cir. 1986); Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir. 1986); American Hospital Supply Corp. v. American Hospital Products, Ltd., 780 F.2d 589 (7th Cir. 1986); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir. 1984). Before a preliminary injunction may issue:

  A plaintiff seeking a preliminary injunction must demonstrate:
  (1) a threat of irreparable harm without an adequate remedy at
  law; (2) some likelihood of success on the merits of the claim;
  (3) a balance of relative harm weighing in favor of granting
  the injunction; and (4) compatability (sic) of the injunction
  and the public interest. (citations omitted).

Chicago Board of Realtors, 819 F.2d at 735; accord, BeerMart Inc. v. Stroh Brewery Co., 633 F. Supp. 1089, 1104 (N.D.Ind. 1986), rev'd on other grounds, 804 F.2d 409 (7th Cir. 1986); Lafayette Beverage Distributors v. Anheuser-Busch, 545 F. Supp. 1137, 1146 (N.D.Ind. 1982); Eaton Corp. v. Appliance Valves Corp., 526 F. Supp. 1172 (N.D.Ind. 1981), aff'd 688 F.2d 842 (7th Cir. 1982). The Supreme Court of the United States in Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), held:

  The traditional standard for granting a preliminary injunction
  requires the plaintiff to show that in the absence of its
  issuance he will suffer irreparable injury and also that he is
  likely to prevail on the merits.

Id. at 931, 95 S.Ct. at 2568. The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the district judge. Lawson Products, 782 F.2d at 1436-37; A.J. Canfield, 796 F.2d at 905-906; Adams, 801 F.2d at 971. It must be remembered that there is no "right" to obtain a preliminary injunction. Amoco Production Co. v. Village of Gambell, Alaska, ___ U.S. ___, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).

The type of injunctive relief sought by the plaintiffs i.e. enjoining possible governmental investigations, places a greater burden upon the plaintiffs. See, Socialist Workers Party v. Attorney General of the United States, 419 U.S. 1314, 1319-20, 95 S.Ct. 425, 428, 42 L.Ed.2d 627 (1974); accord, Calvin v. Conlisk, 520 F.2d 1 (7th Cir. 1975), rev'd and remanded on other grounds, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976); Calvin v. Conlisk, 534 F.2d 1251 (7th Cir. 1976). In Socialist Workers Party, the Court held that "[t]he dangers inherent in undercover investigation are even more pronounced when the investigative activity threatens to dampen the exercise of First Amendment rights." Id. at 1319, 95 S.Ct. at 428. The Court went on to hold: "our abhorrence for a bases of governmental investigative authority cannot be permitted to lead to an indiscriminate willingness to enjoin undercover investigations of any nature, whenever a countervailing First Amendment claim is raised." Id. In this case the plaintiffs have alleged that the governmental investigations violate their First Amendment rights. The requested relief would significantly affect the defendants ability to conduct criminal investigations.

It is clear, that to obtain an injunction against government activity a plaintiff must demonstrate "a persistent pattern of [governmental] misconduct." Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566 (1974); accord, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); see also, Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). The plaintiffs rely on the allegations contained in the complaint and statements included in the affidavits. Nevertheless, the record at this point does not support a finding of a persistent pattern of governmental misconduct. The conclusory allegations are not sufficient evidence to support the extraordinary relief requested by the plaintiffs. Accord, Calvin v. Conlisk, 534 F.2d 1251 (7th Cir. 1976).

The plaintiffs request an order requiring "that whenever possible the bench permit argument by plaintiffs herein prior to issuance of warrants." Under much more egregious circumstances the Court of Appeals for the District of Columbia Circuit held:

  Such extraordinary anticipatory relief cannot be justified
  merely on the ground that toll-record subpoenas might
  possibly be abused in the future so as to effect an
  infringement of plaintiffs' First Amendment rights. If the mere
  possibility of future government misconduct were sufficient to
  warrant such prophylatic relief, then the courts would be
  called upon to superintend virtually all investigative
  activity. Much more than the mere possibility of future
  official misconduct is needed to justify this type of judicial
  intervention.

Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co., 593 F.2d 1030, 1064-65 (D.C.Cir. 1978). To obtain such extraordinary relief, the plaintiffs must demonstrate "a clear and imminent threat of future [governmental] misconduct." Id. at 1071; accord, Olagues v. Russoniello, 770 F.2d 791, 801 (9th Cir. 1985). The record before the court does not demonstrate a clear and imminent threat of future governmental misconduct.

Paragraphs o, p, q, r and s ask this court to modify the terms of the plea agreement, sentences and parole conditions which were adopted and ordered by the Newton Superior Court during sentencing and after Richard Drost entered a plea of guilty to ten (10) criminal charges. The plaintiffs Drost and Naked City, Inc. have failed to present any evidence that the sentence imposed in accordance with the signed plea agreement has been appealed. A challenge to a sentence imposed, as to the fact and duration of confinement, is a request for habeas corpus relief under Section 2254 of Title 28 of the United States Code. See, Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct. 2963, 2973, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. 475, 499 fn. 14, 93 S.Ct. 1827, 1841 fn. 14, 36 L.Ed.2d 439 (1973); United States ex rel. Villa v. Fairman, 810 F.2d 715, 718 (7th Cir. 1987); Hanson v. Heckel, 791 F.2d 93, 95 (7th Cir. 1986). The relief sought in those paragraphs challenges the fact and duration of the conditions imposed as a sentence of the state court. A plaintiff, by alleging money damages, does not convert a habeas corpus challenge into a claim under Section 1983 of Title 42 of the United States Code. See, Wolff, 418 U.S. at 544, 94 S.Ct. at 2969; Preiser, 411 U.S. at 499 fn. 14, 93 S.Ct. at 1841 fn. 14; United States ex rel. Villa, 810 F.2d at 718; Hanson, 791 F.2d at 95. A prerequisite before bringing a habeas corpus petition is exhaustion of state remedies. See, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981); Preiser, 411 U.S. at 490-498, 93 S.Ct. at 1836-40; Hanson, 791 F.2d at 95. In the face of the long and well documented history of the exhaustion requirement, the plaintiffs, Drost and Naked City, Inc., seek habeas corpus relief without evidence of any attempt to exhaust state remedies. Based upon the record as its exists in this case, this court lacks jurisdiction to consider the habeas corpus relief sought. Counts 6, 7, 8, 9, 10, 14, 15, 16, 23, 24, 28, 29, 33, 34, 35, 36, 42, 43, 44, 45, 46, 47 and 48, allege constitutional violations during the investigation, prosecution, guilty plea, sentencing and parole of Drost and Naked City, Inc. and challenge the constitutionality of the fact and duration of the plaintiffs', Drost and Naked City, Inc., confinement outside the State of Indiana. Consequently, the likelihood of success on the merits of those claims is "less than negligible". See, A.J. Canfield, 796 F.2d at 906; accord Chicago Bd. of Realtors, 819 F.2d at 735.

The plaintiffs allege that the alleged confiscation of personal property and alleged sale of that property by the sheriff violated their Fifth and Fourteenth Amendment due process rights. They appear to allege the confiscation was a "taking" and that the sale violated due process. The record illustrates that both of these claims must be considered in light of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on a different issue, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) and its progeny. As in Parratt v. Taylor, the plaintiffs' allegations at issue relate solely to an alleged negligent or intentional deprivation of property interests. Id. This Court held in Thurman v. Rose, 575 F. Supp. 1488 (N.D.Ind. 1983) that:

  a negligent deprivation of a property interest by one acting
  under color of state law does not state a claim under 42 U.S.C. § 1983
  where the forum state provides an adequate
  post-deprivation remedy.

Id., at 1489; see also Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (extended Parratt to intentional torts); Parrett v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981); Bailey v. Andrews, 811 F.2d 366, 371 (7th Cir. 1987); Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594-95 (7th. 1986); Jones v. Board of Education of Township High School Dist. No. 211, 651 F. Supp. 760, 764 (N.D.Ill. 1986); Donald v. Polk County, 649 F. Supp. 1408, 1411 (W.D.Wis. 1986).

In Indiana, the sale of personal property by the sheriff is regulated by statute. The sale is regulated by Indiana Code Section 34-1-39-7 which reads:

  Personal property shall not be sold unless the same shall be
  present and subject to the view of those attending the sale;
  and it shall be sold at public auction, in such lots and
  parcels as shall be calculated to bring the highest price.

The notice of sale is regulated by Indiana Code Section 34-1-39-6 which reads:

  Previous notice of the time and place of the sale of any
  personal property on execution, shall be given for ten (10)
  days successively by posting up written notices thereof in at
  least three (3) of the most public places in the township where
  the same is to be made.

The plaintiffs have not alleged facts which illustrate a violation of either of these sections.

Indiana also provides a post-deprivation remedy. Indiana Code Section 34-1-39-12 reads:

  A sheriff who shall sell any real estate without giving the
  previous notice herein directed, or shall sell the same
  otherwise than in the manner herein prescribed, shall forfeit
  and pay to the party injured, not less than ten ($10.00), nor
  more than two hundred dollars ($200), in addition to such other
  damages as the party may have sustained, to be recovered from
  the sheriff, or from him and his sureties, in an action on his
  official bond.

In addition, the Indiana Tort Claims Act I.C. 34-4-16.5-1 provides remedies for tort claims against governmental entities and public employees. The plaintiffs have not alleged that the post-deprivation remedies are inadequate. Consequently, there is a less than negligible chance of success on the merits.

The same analysis and result are reached if these pleadings are construed to allege an intentional or reckless taking of personal property. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

III.

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court of the United States "held that prosecutors enjoy absolute immunity from § 1983 liability for acts performed within the scope of their quasi-judicial roles as advocates in initiating a prosecution and presenting a State's case." Stokes v. City of Chicago, 660 F. Supp. 1459, 1460 (N.D.Ill. 1987) (citing, Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976)); see also, Hampton v. Hanrahan, 600 F.2d 600, 632-33 (7th Cir. 1979), rv'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978). Recently, the Supreme Court affirmed the holding of Imbler, and held that prosecutors are absolutely immune when carrying out prosecutorial functions. Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985); accord, Pryzina v. Ley, 813 F.2d 821, 823 (7th Cir. 1987). Counts 4, 6, 7, 9, 11, 14, 16, 45, 46 and 48 allege injury as a result of acts arguably performed within the scope of a prosecutor's responsibility to initiate, prosecute and present the State's case. Therefore, the likelihood of success on the merits of those claims is less than "some probability". Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986); accord, Chicago Bd. of Realtors, 819 F.2d at 735.

The Supreme Court, in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) as explained in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), held that "[t]he seriousness of federal judicial interference with state civil functions has long been recognized by this Court." Id., at 603, 95 S.Ct. at 1208. The Court quoting Justice Holmes held "`that no injunction ought to issue against officers of a State clothed with authority to enforce the law in question, unless in a case reasonably free from doubt and when necessary to prevent great and irreparable injury.'" Id., (quoting, Massachusetts State Grange v. Benton, 272 U.S. 525, 527, 47 S.Ct. 189, 190, 71 L.Ed. 387 (1926)). In this case, it is clear that the plaintiffs seek to inhibit the enforcement of the Indiana statutes which prohibit public indecency under certain circumstances. The Seventh Circuit reversed a permanent injunction which this judge entered prohibiting enforcement of Indiana's public indecency statutes. See, Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir. 1986). The plaintiffs argue that Glen Theatre is distinguishable because "Naked City", an approximately 360 acre area which a person must pay a thirty dollar ($30.00) fee to enter to view "contests", is a private place. The question of whether "Naked City" is a private place is not "reasonably free from doubt". Further, the plaintiffs state in their affidavit that "[o]ur remedy at law is not speedy" which demonstrates that there is no great or irreparable injury. There is less than a "very slight chance of prevailing" on the merits. See, Centurion Reinsurance Co. v. Singer, 810 F.2d 140, 145 (7th Cir. 1987), accord, Chicago Bd of Realtors, 819 F.2d at 735.

The Supreme Court in Huffman held that the Younger abstention doctrine applied to civil as well as criminal proceedings. Huffman, 420 U.S. at 604, accord, World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079 (9th Cir. 1987); Brunken v. Lance, 807 F.2d 1325, 1331 (7th Cir. 1986); Collins v. County of Kendall, Illinois, 807 F.2d 95, 98 (7th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987). There are three requirements before Younger abstention may be granted: (1) an ongoing state judicial proceeding; (2) implication of an important state interest in the proceedings; and (3) an adequate opportunity to raise federal questions in those proceedings. In addition to challenging the constitutionality of the criminal proceedings, the plaintiffs request that this court enjoin the proceedings in Cause Number 56-A-03-8606-CV-157 in the Newton County Court, Newton County, Indiana. That proceeding is ongoing. Specifically, the Court of Appeals of Indiana for the Third District, on May 14, 1987, reversed and remanded that case to the trial court "to make special findings of fact as required when granting a preliminary injunction." Andrews v. Board of Commissioners of Newton County, No. C86-65 Slip op. (Ind. App. 3 Dist. May 14, 1987). That case involves the enforcement of zoning ordinances which are a unique interest of each state. In addition, the plaintiffs have an adequate opportunity to raise federal questions, as evidenced by Judge Garrard's opinion where he states:

  While a municipality may provide that no nonconforming use
  shall be enlarged or extended, our Supreme Court has held that
  any attempt to amortize that use, regardless of the length of
  time, is an unconstitutional taking of property without due
  process of law and an unreasonable exercise of police power.
  Ailes v. Decatur County Area Planning Comm. (1983), Ind.,
  448 N.E.2d 1057, 1060.

Andrews, No. C86-65 slip op. at 4. It is clear that the three (3) requirements of Younger are met. However, there are three exceptions to invocation of Younger abstention. The first is:

  where the District Court properly finds that the state
  proceeding is motivated by a desire to harass or is conducted
  in bad faith, or where the challenged statute 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.'"

Huffman, 420 U.S. at 611; Jacobson v. Village of Northbrook Municipal Corp., 824 F.2d 567 (7th Cir. 1987); World Famous Drinking Emporium, 820 F.2d at 1082 (zoning ordinance); Brunken, 807 F.2d at 1331; Collins, 807 F.2d at 98. The plaintiffs allege that they are being harassed and persecuted by Newton County officials. As evidence they point to a list of "raids" conducted at the property referred to as "Naked City", and the recent zoning ordinance dispute. Further, the plaintiffs allege that their "competitor" is in violation of the same zoning ordinance but has not been enjoined and that the county officials do not raid, arrest, prosecute and sentence their competitors for criminal conduct. At this time, the record before this court is void of evidence that any person or entity in Newton County is committing or has committed the same or similar crimes as the plaintiffs, Drost and Naked City, Inc. were charged with and to which they each pled guilty. In Collins, the Seventh Circuit held that "[i]nstituting approximately thirty criminal prosecutions over a two-year period does not constitute bad faith or harassment in and of itself." Collins, 807 F.2d at 99 (prosecutions were brought under state criminal obscenity statutes). The plaintiffs, also, allege that the absence of an attempt to enjoin the operation of Ponderosa Sun Club, which is alleged to be in violation of zoning ordinances, demonstrates that Cause Number 56-A-03-8606-CV-157 is brought in bad faith and to harass the plaintiffs. The Seventh Circuit relying upon Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), held that:

  The Younger rule, as applied in Hicks [v. Miranda,
  422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975)], requires more than

  a mere allegation and more than a `conclusory' finding to bring
  a case within the harassment exception.

Collins, 807 F.2d at 98 (quoting; Grandco Corp. v. Rochford, 536 F.2d 197, 203 (1976)). In Grandco, the Seventh Circuit reversed the entry, by then District Judge Flaum, of an injunction where "[t]he district court essentially relied on the allegations of harassment in the complaint and evidence of multiple prosecutions." Grandco, 536 F.2d at 203. The record is before this court is as bare as apparently was the record before Judge Flaum. The second exception to Younger abstention is when there is "an extraordinarily pressing need for immediate equitable relief." Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975); accord, Jacobson, 824 F.2d 567 (7th Cir. 1987). The record before this court does not disclose an extraordinarily pressing need for equitable relief. The third exception to Younger abstention is when the "challenged provision is flagrantly and patently violative of express constitutional prohibitions." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); accord, Jacobson, 824 F.2d 567 (7th Cir. 1987). The statutes and zoning ordinances which appear to be at issue in this case are not flagrantly and patently violative of express constitutional provisions. See, Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir. 1986). Consequently, the plaintiffs cannot invoke any of the three exceptions to the Younger abstention doctrine.

IV.

  The plaintiffs allege injury as a result of the arrest of other
individuals. In Count 21 the plaintiffs allege injury due to
the use of "2 undercover Sheriff's deputies" who entered the
premises on May 2, 1987, allegedly without a search warrant,
and because the "police" entered plaintiff's, Slater,
"residence" and arrested eleven (11) of "Slater's guests".
Further, during oral argument plaintiffs' counsel argued that
the arrest of another 60 or more individuals on July 18, 1987,
constituted an injury to these plaintiffs. The Supreme Court
has consistently held that "a plaintiff must generally assert
his own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties."
Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975); cf., Foster v. Center Township of LaPorte County,
798 F.2d 237 (7th Cir. 1986). The plaintiffs' counsel admitted that
none of the plaintiffs had been arrested on May 2, 1987, or
July 18, 1987. In Foster the Seventh Circuit recited three
(3) "irreducible minimum" requirements:

   . . that must be present before a party may invoke the
  Article III power of a federal court: (1) the party "personally
  has suffered some actual or threatened injury as a result of
  the putatively illegal conduct of the defendant," (quoting
  Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99,
  99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)); (2) the injury
  "fairly can be traced to the challenged action," (quoting
  Simon v. Eastern Kentucky Welfare Rights Organization,
  426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976)); and
  (3) the injury "is likely to be redressed by favorable
  decision," (quoting Simon, 426 U.S. at 41, 96 S.Ct. at 1925).
  See also Allen v. Wright, 468 U.S. 737, 766, 104 S.Ct. 3315,
  3324-25, 82 L.Ed.2d 556 (1984); Secretary of State v. Joseph
  H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 2846, 81 L.Ed.2d
  786 (1984); Watt v. Energy Action Educational Foundation,
  454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981).

Foster, 798 F.2d at 241-42. The record before this court does not demonstrate the requisite elements to invoke claims premised upon the arrest of other individuals.

The plaintiffs complaint alleges injury for which they seek money damages against the State of Indiana and officials of the State of Indiana. The Eleventh Amendment of the Constitution of the United States prohibits suits brought against a state or its agencies unless the state consents to such suit or Congress expressly abrogates the state's immunity. See, B.H. Papasan v. Allain, ___ U.S. ___, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Green v.Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-43, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985); Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99-101, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984); Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694 (1982); Quern v. Jordan, 440 U.S. 332, 339-340, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978); Milliken v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1974); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Kashani v. Purdue University, 813 F.2d 843 (7th Cir. 1987); Brunken v. Lance, 807 F.2d 1325, 1328 (7th Cir. 1986); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 943 (7th Cir. 1986); Adams v. State of Indiana, 795 F.2d 27, 28 (7th Cir. 1986); Gleason v. Board of Education of the City of Chicago, 792 F.2d 76, 79 (7th Cir. 1986); Watkins v. Blinzinger, 789 F.2d 474 (7th Cir. 1986), cert. denied sub nom., Diamond v. Blinzinger, ___ U.S. ___, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987); Parents for Quality Education with Integration, Inc. v. State of Indiana, 662 F. Supp. 1475 (N.D.Ind. 1987); Richardson v. Penfold, 650 F. Supp. 810, 811 (N.D.Ind. 1986); Wellman v. Trustees of Purdue University, 581 F. Supp. 1228, 1229 (N.D.Ind. 1984); Hendrix v. Indiana Public Defender System, 581 F. Supp. 31, 32 (N.D.Ind. 1984). There is no evidence in this record which illustrates that the State of Indiana expressly or impliedly consented to be sued in federal court. Further, Congress did not abrogate the state's Eleventh Amendment immunity when it enacted the Civil Rights Act. See, Quern, 440 U.S. at 339-346, 99 S.Ct. at 1144-47; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1184 (7th Cir. 1982); Parents for Quality Education with Integration, Inc. v. State of Indiana, 662 F. Supp. 1475 (N.D.Ind. 1987). Based upon the record before this court there is "less than a negligible" likelihood that plaintiffs will prevail on their damage claims against the State of Indiana or its agencies. See, A.J. Canfield, 796 F.2d at 906; accord, Chicago Bd. of Realtors, 819 F.2d at 735.

V.

The Supreme Court, in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), held that:

  After exhaustively reviewing the different ways that § 1983
  claims have been characterized in every Federal Circuit, the
  Court of Appeals concluded that the tort action for the
  recovery of damages for personal injuries is the best
  alternative available. 731 F.2d, at 650-651. We agree that this
  choice is supported by the nature of the § 1983 remedy, and by
  the federal interest in ensuring that the borrowed period of
  limitations not discriminate against the federal civil rights
  remedy.

Id. at 1947. The applicable statute of limitations for claims under 42 U.S.C. § 1983 and 1985 in Indiana is two years. See, Eades v. Thompson, 823 F.2d 1055 (7th Cir. 1987); Dugan v. Ball State University, 815 F.2d 1132, 1135 (7th Cir. 1987); Loy v. Clamme, 804 F.2d 405, 408 (7th Cir. 1986); cf. Anton v. Lehpamer, 787 F.2d 1141 (7th Cir. 1986); see also, Ross v. Summers, 630 F. Supp. 1267, 1269 (N.D.Ind. 1986); Gaus v. County of Wells, Indiana, 620 F. Supp. 1462, 1465 (N.D.Ind. 1985). In Dugan the Seventh Circuit held that an:

  "Indiana `plaintiff whose section 1983 cause of action accrued
  before the Wilson decision, April 17, 1985, must file suit
  within the shorter period of either five years from the date
  his action accrued or two years after Wilson.'" Loy v.
  Clamme, 804 F.2d 405, 408 (7th Cir. 1986), quoting Anton v.
  Lehpamer, 787 F.2d 1141, 1146 (7th Cir. 1986) (Anton held
  that Wilson was not to be applied retroactively in Illinois).

Dugan, 815 F.2d at 1135. However, in view of the recent Supreme Court decision in Goodman v. Lukens Steel Co., ___ U.S. ___, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), both this court and possibly this circuit may have been excessively generous in hesitating to apply Wilson retroactively. Id., at 2621.

This case was filed on May 22, 1987; any causes of action under 42 U.S.C. § 1983 or 1985 which accrued before April 17, 1985, must have been filed not later than April 17, 1987, or they are barred by the statute of limitations. To the extent that Goodman may apply in this case, it decreases the likelihood that these plaintiffs will prevail. Of the plaintiffs' claims under 42 U.S.C. § 1983 or 1985 which are not the victim of an immunity defense it appears that based upon the record before this court that there is a "less than negligible" chance of prevailing on the merits.

Several of the plaintiffs' claims allege injury as a result of acts done by judges or prosecutors acting within the scope of their duties. The Supreme Court has unequivocally held that judges and prosecutors are absolutely immune from liability for damages for acts done within the scope of their duties. See, Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather he will be subject to liability only when he has acted in the `clear absence of all jurisdiction.'" Stump, 435 U.S. at 357-58, 98 S.Ct. at 1105 (quoting, Bradley v. Fisher, 13 U.S. (Wall.) 335, 351, 20 L.Ed. 646 (1872)); accord, Pryzina v. Ley, 813 F.2d 821, 823 (7th Cir. 1987); Eades v. Sterlinske, 810 F.2d 723 (7th Cir. 1987); McMillan v. Svetanoff, 793 F.2d 149 (7th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 574, 93 L.Ed.2d 577 (1987); Forrester v. White, 792 F.2d 647 (7th Cir. 1986), cert. granted, ___ U.S. ___, 107 S.Ct. 1282, 94 L.Ed.2d 140 (1987); McDonald v. Krajewski, 649 F. Supp. 370 (N.D.Ind. 1986); Flynn v. Dyzwilewski, 644 F. Supp. 769 (N.D.Ill. 1986); Eisenberg v. Sternberg, 641 F. Supp. 620 (W.D.Wis. 1986); Miller v. Duffin, 637 F. Supp. 496 (N.D.Ind. 1986), aff'd, 812 F.2d 410 (1987). Counts 5, 9, 10, 16, 18, 23, 24, 37, 38, 39, 40, 41, 42 and 43 allege some type of injury as a result of acts by judges. The Supreme Court, in Stump, announced two (2) factors to be considered: (1) whether the action in question is the kind normally performed by a judge; and (2) whether the plaintiff was dealing with the judge in his judicial capacity Stump, 435 U.S. at 362, 98 S.Ct. at 1107; Eades, 810 F.2d at 725-26. All of the allegations in the plaintiffs' complaint involve acts which are the kind normally performed by a judge while these plaintiffs were dealing with the judges in their judicial capacity. Further, the record is void of any evidence that any of the alleged acts were done in clear absence of all jurisdiction.

The record presently before the court illustrates that the plaintiffs have failed to carry their burden to prove a likelihood of success on the merits of those claims arguably related to their requests for preliminary injunctive relief. Further, the plaintiffs effectively admit that there is an adequate remedy at law by their claims for damages and the conclusion in their affidavit that "[o]ur remedy at law is not speedy." Consequently, the plaintiffs request for preliminary injunctive relief is hereby denied.

Accordingly, and for all the above reasons, it is the ORDER of the Court that the plaintiffs', Naked City, Inc., Dick Drost and Florence Gay Slater, request for preliminary injunctive relief be, and is hereby DENIED. SO ORDERED.

APPENDIX A

The contents of this appendix are taken directly from the plaintiffs' complaint.

2ND CAUSE OF ACTION — 42 U.S.C. § 1983

DEFENDANTS — CASEY, BLANEY, PETER BISBIS,

13. Plaintiffs incorporate paragraphs 2-12 in this cause of action.

14. Newton county attempted to enjoin Drost but did not attempt to enjoin the Ponderosa.

15. The selective prosecution described in this cause of action constitutes a denial of equal protection and thus a violation of the civil rights of plaintiffs Drost, Slater, and Naked City.

16. As a proximate result of this meritless prosecution under color of state law, plaintiffs have suffered damages in the amount of $10 million for which defendants are each liable.

4TH CAUSE OF ACTION — MALICIOUS PROSECUTION/ABUSE OF PROCESS

18. Defendants Casey, Bisbis, Newton County, Newton County Board of Commissioners, and John Casey initiated prosecution of an illegal temporary restraining order.

19. As a proximate result of this malicious prosecution, plaintiffs Drost, Slater, and Naked City suffered damages in the amount of $10 million.

20. Plaintiffs incorporate all other paragraphs in this cause of action.

21. The malicious prosecution was willful and invidiously discriminatory (based on religion).

22. Punitive damages in the amount of $30 million are warranted against Newton County to deter ...


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