The opinion of the court was delivered by: Allen Sharp, Chief Judge.
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
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
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
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;
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
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
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
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
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
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
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
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.
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
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
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
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)
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
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
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).
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
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:
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.
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.
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
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).
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.
The contents of this appendix are taken directly from the
2ND CAUSE OF ACTION — 42 U.S.C. § 1983
DEFENDANTS — CASEY, BLANEY, PETER BISBIS,
13. Plaintiffs incorporate paragraphs 2-12 in this cause of
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
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
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 ...