Opinion
03 Civ. 9376 (HB)
December 18, 2003
OPINION ORDER
Plaintiff Police Officer John Buric ("Buric") moves by order to show cause to enjoin a psychological examination scheduled for December 15, 2003 before the Police Pension Fund Article n Medical Board ("Medical Board")-After a hearing on this motion, the Court ordered a stay in the proceedings before the Medical Board pending a decision on this motion. For the following reasons, Buric's motion is granted.
I. BACKGROUND
Buric, who is 46 years old, was hired as a police officer in 1982 and has since been terminated four times. He was ordered to be reinstated each time by New York courts. In September 2003, six months after Buric's fourth reinstatement, the NYPD notified him of its application to the Medical Board to involuntary retire him on the grounds of psychological unfitness. After Buric received and reviewed the materials the NYPD sent to the Medical Board, Buric filed an Article 78 proceeding in New York Supreme Court in which he sought, inter alia, to enjoin the hearing. The NYPD removed the case here, because Buric alleged a violation of 42 U.S.C. § 1983 — i.e., that he was being retaliated against for exercising his First Amendment right to petition.
He also claims that the NYPD's actions are illegal in that they violate the appellate division's reinstatement order. He also seeks to annul the complained-of actions, if necessary to have a trial on any factual issues, and to recover compensatory and punitive damages.
A. History of the relationship
Buric was hired as a police officer in January 1982, after he passed the required written and medical exams and a psychological evaluation, In April 1983, fifteen months into his eighteen-month probationary period, he was terminated based on his prior record in public employment. Most significant in the decision to terminate him was that he had been dismissed from a position as a voluntary member of the auxiliary police in 1977, a dismissal which he successfully challenged. (He was reinstated and continued to serve as an auxiliary police officer until he was appointed as police officer in 1982.) Buric appealed his April 1983 termination to the New York Civil Service Commission, which ordered him reinstated. After the NYPD unsuccessfully appealed the Commission's determination to the Supreme Court and to the Appellate Division, see Ward v. Civil Serv. Commn., 498 N.Y.S.2d 240 (N.Y.App.Div. 1986), Buric was eventually rehired on April 9, 1986. He was fired the very next day because he declined to sign an acknowledgement that he was a probationary officer and that he waived any claim for back pay; this matter was resolved within a week. (He eventually did sign an acknowledgment to this effect, which was later determined to be unenforceable "since the imposition of such a condition for reinstatement amounted to duress.")
Buric started as an auxiliary police officer in 1975. His other public employment was as a traffic enforcement officer and as a corrections officer for New York State (from June 1980 to March 1981) and New York City (from March 1981 to January 1982).
Former section 812(c) of the New York City Charter defined the powers of the Civil Service Commission and specified in relevant part that: `The civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the personnel director made pursuant to . . . [former § 813(a)(6) or (7)] and may affirm, modify, or reverse such action or determination." See In re Ward v. Civil Serv. Comm., No. 43772/84, slip op. at 3-4 (N.Y.Sup.Ct. Apr. 12, 1985). Section 76(1) of the New York State Civil Service Law grants an aggrieved employee the option to appeal a dismissal either Civil Service Commission or to the courts. See In re Ward, slip op. at 4. Buric chose to appeal to the Civil Service Commission. See id. at 5.
See In re Ward v. Civil Serv. Comm. (Motion #47 of Oct. 23, 1990), No. 43772/84, slip op. at 4-5,(N.Y.Sup.Ct.Feb. 1, 1991).
In May 1986, a month after he was reinstated, the NYPD terminated Buric on the grounds of psychological unfitness. Pursuant to the NYPD's policy for reinstated officers, Buric underwent testing, including a psychological evaluation, and the psychologist found him psychologically unfit based on an unstable emotional state and certain family problems, such as the death of his father and the stillbirth of his child, and alcoholism. Buric challenged this determination in the courts and again he prevailed. The matter of whether the NYPD willfully violated the previous reinstatement order was referred by Justice Greenfield to an official referee. After an extensive hearing — it lasted approximately 22 days over a period that extended from November 1998 to March 1989 — the special referee determined that the NYPD willfully failed to comply with the order of reinstatement when it required him to agree that he had three months remaining as a probationary officer as a condition of reinstatement. The Supreme Court upheld this determination and found the NYPD in contempt. See Ward v. Buric, 575 N.Y.S.2d 30, 31 (App.Div. 1991). The litigation with respect to this third termination lasted many years and Buric was not reinstated until January 1992. For the next three years, he was evaluated periodically by a NYPD psychologist and restricted to non full-duty assignments. In 1995, after the NYPD psychologist who was monitoring his progress determined that his "coping skills" and judgment had sufficiently improved, he was eventually cleared for full duty.
The referee also noted:
I wish to touch upon certain arguments made by the City concerning psychological evaluations of Buric. These are additional points in Buric's favor, although in my view not necessary for him to prevail here. Buric was subject to a psychological test four days after the funeral of his stillborn child.
It appears that Buric was deemed "psychologically unsuitable" for police work when he was reinstated in April 1992 but "[b]ecause of the legal situation, he was retained but was not returned to full duty." According to the report of a NYPD psychologist, "[t]he core psychological deficit was that when P.p. Buric was placed under stress, he displayed poor judgment."
In April 1997, Buric was involved in an altercation with a prisoner whom Buric had let out of a cell. Buric was charged with 1) the unjustified use of excessive force against a prisoner, 2) the unauthorized removal of a prisoner from a cell, and 3) making a false statement when he denied the use of excessive force. After a disciplinary hearing, the NYPD hearing examiner found him guilty of all three charges. (Buric admitted to the second of these charges but denied the first and third.) The NYPD Commissioner accepted the hearing examiner's report and on April 22, 1999 Buric was terminated for the fourth time. Again, Buric challenged this determination and again he was vindicated by the state courts. This time the court found that the hearing examiner's determination was not supported by substantial evidence and that there was considerable evidence of bias against Buric. The Appellate Division, First Department affirmed and stated: "Although the threshold required to annul the Commissioner's determination is a very high one, the Commissioner's findings in this case clearly demonstrate, on the record, the lack of any rational basis." Buric v. Safir, 736 N.Y.S.2d 342, 348 (App.Div. 2002). In particular, the court was troubled that the hearing officer found Buric's account of the incident implausible and credited the complainant-prisoner's testimony based in significant part on the testimony of other prisoners who, according to the documentary evidence, were not present to witness the incident. See id at 346 ("The inescapable conclusion is that their testimony was fabricated."), 348-49. Perhaps even more damning, it appeared that the Internal Affairs detective who investigated the charges against Buric had coached the complainant — urging him to state that Buric beat him for 10 minutes rather than the complainant's improbable 20 minutes. See id at 344, 349. Finally, the LAB detective's report included certain prejudicial details and excluded certain helpful information: For example, the detective was directed by his supervisor to include in the report that Buric had a history of litigating his way back onto the job. See id at 345, 350. Also, the report recounted the complainant's statement that he had smelled alcohol on Buric's breath at the time, but failed to include the statements of police officers that they smelled no alcohol on his breath and that he appeared calm and fit for duty. See id at 345, 350. According to the appellate court, the detective's actions "when taken as a whole, evince a pattern so calculated as to be indicative of retaliation." See id
B. Current effort to terminate
Buric was reinstated from his fourth termination (in 1999) on March 3, 2003, whereupon he was subject to a psychological evaluation as part of the reinstatement review process. In April 2003, Buric was interviewed by Dr. Dayle Schwarzler, a NYPD psychologist, who issued a report on April 11, 2003 entitled "Reinstatement Interview of P.O. John Buric April 9, 2003." This report reviews several incidents involving Buric, in particular "the alleged physical abuse of [his] daughter" in 1998, the "ill-judged decision to remove the prisoner from his cell" in 1997, and his arrest for criminal impersonation of a police officer in 2001. She concluded: "In summary, P.O. Buric displays persisting impairment in his ability to regulate his behavior in accordance with good judgment when he is under emotional stress. The impairment is severe, longlasting, and resistant to remediation. He is not psychologically suitable for full-duty police work." (Although she concluded Buric was unfit, Dr. Schwarzler did not make a diagnosis in this report.) Dr. Schwarzler interviewed him again in August and on August 6, 2003 issued a second report entitled "Addendum to Reinstatement Interview of P.O. John Buric." In the report of her follow-up interview, Dr. Schwarzler noted that "despite the opportunity to demonstrate insight into his problematic behavior . . . he was unable to do so" and concluded:
Although reinstated on March 3, 2003, the NPYD has not returned him to full-duty status nor assigned him to any officer duties.
P.O. Buric's enduring pattern of problematic behavior, along with his inability to develop insight into the fact that he fails to regulate his behavior appropriately when his emotions are aroused, are characteristic of the class of pathological conditions known as Personality Disorders. These disorders are extremely resistant to remediation.
Dr. Schwarzler also stated: "Sufficient information is now available to assign a diagnosis of Personality Disorder, NOS, to P.O. Buric."
The endorsement by Dr. Eloise M. Archibald included the following assessment:
P.O. John Buric has a long history of problems in and outside of the Department, many of which can be attributed to personality difficulties. As one reviews his history there is a clear pattern of difficulty successfully negotiating conflict with others. . . . As Dr. Schwarzler points out, when not emotionally stressed, P.O. Buric can apparently function adequately and be pleasant. However, when stressed, his behavior becomes unpredictable. It is not clear from this endorsement whether and to what extend Dr. Archibald interviewed or evaluated Buric.
On September 9 of this year, the NYPD notified Buric that it had asked the Pension Fund to involuntarily retire him for psychological unfitness. The materials forwarded to the Medical Board by the NYPD consisted of 1) the two reports by Dr. Schwarzler of her interviews with Buric; 2) a "Recommendation for Examination by Article n Medical Board," dated August 11, 2003 from the "Supervising Chief Surgeon" to the Police Commissioner; and 3) a ten-page memo dated July 8, 1998 by departmental psychologist Kimberly Norton, Ph.D. to the director of the Psychological Evaluation Unit with regard to a psychological evaluation of Buric. The recommendation for the Medical Board examination summarizes his diagnosis as follows:
PO Buric has longstanding psychological problems indicative of a personality disorder. He has been evaluated at Psychological Services on many occasions by several different psychologists from 1986-present His problems of poor judgment when stressed, difficulty managing his anger, periods of anxiety and depression, are longstanding and resistant to change. These problems have seriously disrupted both his professional and personal life. He experienced trouble as an NYPD Police Officer, Correction Officer (both for New York City and New York State), NYPD Auxiliary Police Officer, and Transit Authority worker. Faced with the difficult job of being a single parent to two children, he used poor judgment on more than one occasion by attempting to physically discipline his daughter when she was a teenager. Not only did this method appear to not give him the desired results but led to investigations into possible child abuse. Despite two periods in psychotherapy, 1986-87 and 1996-97, he still lacks insight into the role that he has played in the turbulent events of his life. He has been unable to change significantly and presents too great a risk to be returned to full duty police work. His presentation is most consistent with the diagnosis of Personality Disorder NOS, DSMIV #301.9.
The Medical Board hearing was original scheduled for November 11, but was postponed to December 15 because the NYPD failed to timely furnish to Buric's attorney the evidence that the NYPD submitted to the Medical Board.
The report by Dr. Norton is a comprehensive review of Buric's employment and personal history, at the end of which she concluded:
The facts in this report clearly demonstrate a longstanding pattern of significant behavioral problems. These problems include persistent lateness and other attendance problems, interpersonal conflicts at work and at home, parenting problems, alcohol problems, acts of very poor judgment . . ., and emotional and somatic problems. There is a significant pervasive personality difficulty that underlies his behavioral problems.
Dr. Norton recommended in her 1998 report that he not be cleared for full-duty police work.
II. DISCUSSION
A. Injunction
It is well established that to obtain the preliminary injunction he seeks here, Buric must show "(a) that it will suffer irreparable harm in the absence of an injunction and (b) either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." Tom Doherty Assocs. v. Saban Entertainment, 60 F.3d 27, 33 (2d Cir. 1995).
The NYPD also contends that because Buric seeks to enjoin governmental action, he may not rely on the less rigorous "serious question/balance of hardships" alternative to the second prong but must instead rely on the likelihood-of-success alternative. Because Buric does not attempt to justify the injunction based on the less rigorous alternative, this is a non-issue, however, the case that the NYPD relies on reveals that this rule is not without some nuance:
This Circuit has offered differing views on the appropriate standard for issuance of a preliminary injunction against governmental action. We have sometimes required a strong showing of entitlement to a preliminary injunction against governmental action, at least where the injunction stays" governmental action taken in the public interest pursuant to a statutory . . . scheme," or the injunction might "adversely affect the public interest in a manner which cannot be compensated for by an injunction bond." Judge Friendly expressed the view that the "serious question/balance of hardships" test is not applicable where an injunction is sought against a sovereign. On the other hand, we have said that the "probability of success" standard "need not always be followed merely because a movant seeks to enjoin government action," and we have applied the lesser standard in suits against governmental entities. As Haitian Centers [Council, Inc. v. McNary, 969 F.2d 1326, 1339 (2d Cir. 1992),] pointed out, in some litigation against the government, "no party has an exclusive claim on the public interest."Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir. 1997) (citations omitted).
With respect to the irreparable-harm prong — which is manifestly the critical issue here — it is also well established that injuries associated with termination of employment, such as loss of income and damage to reputation, do not as a rule constitute irreparable injury sufficient to grant a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 91-92 (1974) ("Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case." Further, the availability of back pay and reinstatement usually militate against an injunction for the imminent termination of employment, but Buric contends that the extraordinary circumstances here warrant an exception. See id at 92 n. 68 ("We recognize that cases may arise in which the circumstances surrounding an employee's discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found. . . . [W]e do not wish to be understood as foreclosing relief in the genuinely extraordinary situation."); see also Derrick Piercy v. FRB, No. 02 Civ. 5005 (DC), 2003 U.S. Dist. LEXIS 379 (S.D.N.Y. Jan. 13, 2003) ("In the employment context, `courts are loathe to grant preliminary injunctions,' because injuries often associated with employment discharge, such as damage to reputation, financial distress, and difficulty finding other employment, do not constitute `irreparable harm' unless extraordinary circumstances are shown."). Therefore, the two critical issues are whether this is an extraordinary situation where an injunction against a termination is warranted and whether Buric has shown irreparable harm.
Although the parties dispute whether Buric has met both of these prongs, it is evident that the first prong — the showing of irreparable harm — is the critical consideration. With respect to the likelihood-of-success prong, the NYPD contends that Buric's argument rests improperly on the assumption that the Medical Board will not make an independent decision based on the evidence before it; the NYPD also argues that the rules that govern involuntary-retirement proceedings before the Medical Board afford Buric ample due process. However, these arguments have little or no bearing on the likelihood of success on the merits and instead are relevant to whether he faces irreparable harm. The gravamen of plaintiffs claim is that the NYPD's application to the Medical Board to involuntarily retire him is unlawful. Accordingly, the likelihood-of-success analysis must focus on whether Buric can show that the NYPD's diagnosis of personality disorder is a sham and that it is just the latest attempt to force him out of the NYPD due to past litigation. Given that the appellate division recently found that there was substantial evidence of retaliation against him, it is beyond peradventure that he can demonstrate a likelihood of success on his claim.
It is amply apparent from the long history of the tension between the parties that this is not the ordinary employment relationship. Given the long history of his conflict with the NYPD, in which he has been repeatedly vindicated by the courts and in which one court found evidence of retaliation in connection with his most recent termination, this would seem to be a textbook case of "extraordinary circumstances" The parties have been involved in extensive litigation on three prior disputes — not including Buric's legal challenge to his termination from the auxiliary police in 1977 nor the dispute with respect to the impersonating an officer/false arrest incident in 2001. Moreover, although mindful that the Court may not wander beyond the scope of its expertise, the reports by the NYPD psychologists contain very little in the way of esoteric diagnoses or technical medical terminology, and thus contain for the most part information which any lay person, including federal judges, are likely to be able to grasp. A review of the materials submitted to the Medical Board raises several concerns. Most significantly, to a considerable extent the psychologists fault Buric for poor judgments when under stress and furthermore fault him for his failure to take proper responsibility. The vice here is their reliance on allegations that are very much in doubt, such as the circumstances of his arrest in 2001 for impersonating an officer. Stated more bluntly, if he did not impersonate an officer as alleged, then he cannot be accused of exhibiting poor judgment. Further, with respect to the only supported allegation it is hard to conclude that he fails to shoulder responsibility for his behavior. The reports also appear unduly harsh. The psychologists may well be correct that Buric is psychologically unfit because of poor judgment and the inability to accept responsibility for his misdeeds, but in reaching such a conclusion the psychologists give him little credit for the legitimate tragedies that have befallen him. These include the stillbirth of his son in 1986 (just a few days before the NYPD required that he go forward with a psychological evaluation), the death of this wife in 1993 and the responsibility that goes with raising two children as a single parent. Interesting too is that the reports fail to ascribe a scintilla of responsibility to the NYPD. To be clear, Buric may very well be psychologically unfit — that is not a determination that the Court has the expertise to make — but enough questions are raised on the face of these reports to lend credence to Buric's argument that the September 2003 application to the Medical Board for his involuntary retirement is yet another attempt by the NYPD to harass and remove him from the Department, and accordingly fall within the small group of cases that constitutes genuinely extraordinary circumstances and warrants the court's intervention.
With respect to the false-arrest incident, the fact that the City subsequently paid Buric $25,000 to settle the false-arrest claim he brought certainly tends to indicate that the NYPD rather than Buric was in the wrong on that occasion. In an affidavit he submitted in connection with this motion, Buric attested that while working as a detective for the Society for the Prevention of Cruelty to Children ("SPCC") on a Sunday in February 2001, he received a call from a "Mr. Russo" who stated that he had hit Buric's car, which was parked on the street and had an SPCC placard on the dashboard. In response to Mr. Russo's question about the SPCC badge, Buric stated that he was investigating complaints about child abuse, whereupon he was surrounded by police officers, taken into custody, and charged with criminal impersonation of a police officer. Whether, if true, this was a mistake, incompetence, or a trap set by the NYPD may never be known. What we do know is that the charge was subsequently dropped when the Manhattan District Attorney determined the charge was unfounded.
The psychologists also rely significantly on the alleged abuse of his teen-age daughter. However, Buric notes that Buric's daughter has since recanted all her allegations. At the departmental trial on the charges with respect to the incident with the prisoner in April 1997, Buric's daughter testified that the complaint she made against him was false and was made so he would be less strict with her.
Although perhaps not the mea culpa that Dr. Schwarzler believed would be appropriate, Buric reportedly stated during the interview on April 9, 2003 that his decision to let the prisoner out of the cell was "was just stupid."
With respect to irreparable harm, the NYPD argues, with considerable force, that Buric can only speculate that the Medical Board, which the NYPD emphasizes is a corporate entity separate and distinct from the NYC and NYPD, will conclude that he is psychologically unfit. Buric, on the other hand, contends that the process is the harm. For one, if the NYPD is permitted to proceed, these proceedings will certainly last many months (if not more), during which time he will most likely be on modified duty, as he is now, and thus denied the opportunity to perform any true police duties or have a meaningful career with the NYPD. He claims that there is the risk the Medical Board, although independent, will still be "bullied" into agreeing with the NYPD and adjudge him a "psycho" based on the Department's two-decade long effort to extricate him; even if he is able to prove later that the NYPD's actions were unlawful, as in the past, in the meantime he will have to live with this stigma and will have to notify prospective employers of this determination. Finally, if the proceedings continue he contends that he must choose either to 1) challenge them in which case he risks losing benefits of approximately $10,000 to $12,000 per year from the NYPD Variable Supplements Fund, or 2) give up the opportunity to ever work as a police officer again and retire with a service pension and ensure that he receives the Variable Supplements benefits. I agree with Buric that in the unusual circumstances here, he has shown that he faces irreparable harm.
The NYPD also notes that this recommendation must then be adopted by the Pension Fund's Board of Trustees. The Board of Trustees consists of the New York City mayor, the NYPD police commissioner, the New York City comptroller, the finance commissioner, several officials of the Patrolman's Benevolent Association (the president, first vice president, second vice president, and chair of the board trustees), the president of the Detective's Endowment Association, the president of the Sergeant's Benevolent Association, the president of the Lieutenant's Benevolent Association, and the president of the Captain's Endowment Association. See N.Y.C. Admin. Code § 13-216 (2001).
He also notes that he will not be able to return to the work he did prior to his reinstatement in March 2003, which was as a conductor for the MTA. When he was reinstated to the NYPD, he was granted a leave of absence. However, this leave of absence expired in September and his request for an additional leave was denied.
The case of Lenihan v. City of New York, 636 F. Supp. 998 (S.D.N.Y. 1985), is instructive. The plaintiff in Lenihan was a female police officer who challenged a determination by the Medical Board that she was psychologically unfit for police duty and who sought to enjoin the Board of Trustees from acting on the Medical Board's recommendation. See Lenihan, 636 F. Supp. at 1007. She claimed that the NYPD's effort to retire her was based on her sex and thus constituted unlawful discrimination and was in retaliation for her participation in a prior litigation against the NYPD. See id. Significantly, she had been an active member in a class action against the NYPD in which 80 policewomen who had been laid off in 1975 during the City's fiscal crisis successfully challenged their lay-offs as sexual discrimination. See id. at 1002. After a hearing on Lenihan's motion for a preliminary injunction, the defendants agreed to Judge Conner's proposal that it take no further action to retire Lenihan pending a full trial on the merits. See id at 1001. Although reticent to intrude into areas beyond his bailiwick — such as resolving opposing opinions by psychologists or determining how the NYPD should deploy its personnel, see id at 1008 — Judge Conner nevertheless stated:
For example, she reported that she continued to receive bad treatment from certain male superiors, such as unjustifiably unfavorable reviews and assignments.
This is not to say that the administrative processes of the Police Department are beyond the scrutiny of the courts, or that federal judges should quail when confronted with psychiatric or other scientific jargon. To the contrary, with due consideration for their respective spheres of expertise, judges can and must compel police officials to apply their policies evenhandedly, and require psychiatrists to state and explain, in terms comprehensible to a layman, the factual bases underlying their conclusions.Id at 1008-09. Judge Conner found that the NYPD discriminated against her on the basis of her sex when it referred her for the psychiatric evaluation for the "survey," in violation of Title VII. See id at 1010-16. Judge Conner declined to take a position on whether Lenihan suffered a psychiatric disability, but enjoined the NYPP from "retiring plaintiff on psychiatric grounds based on the record they have compiled to date." Id at 1016.
In sum, I conclude that Buric has carried his burden of demonstrating that he faces irreparable harm absent an injunction and that he will likely succeed on the merits. Although noted above, it bears repeating that the Court takes no position on whether Buric is psychologically unfit to be a police officer, as that question is neither currently before the Court nor within my bailiwick.
B. Unripeness and Younger abstention
The NYPD also contends that the matter is not yet ripe for review and that I should abstain from enjoining an ongoing state administrative proceeding on the basis of the abstention doctrine of Younger v. Harris, 401 U.S. 37, 46 (1971). First, I disagree that this matter is not ripe. Although the primary remedy Buric seeks is to enjoin the hearing before the Medical Board, the action he claims is illegal is the NYPD's attempt to involuntarily retire him and its application to the Medical Board. Thus he is not challenging an application to the Medical Board per se, but rather an allegedly unlawful application to the Medical Board and this fact is what distinguishes this matter from Coffran v. Board of Trustees of the N.Y. City Pension Fund, 46 F.3d 3 (2d Cir. 1994) (per curiam), in which the Circuit held that a challenge to the NYC's decision that a police officer was to be involuntarily retired was not ripe because the Board of Trustees of the Pension Fund had not yet rendered its decision. Moreover, even if the harm he alleges would not ordinarily entitle him to injunctive relief, it is clear that the NYPD's allegedly unlawful acts cause him harm in any number of ways. With respect to the Younger abstention doctrine, although the fact that the NYPD removed Buric's case, which he originally filed in New York State Supreme Court, here does not deprive me from considering whether to abstain, the purpose which animates this doctrine — i.e., comity and federalism, see Christ the King Regional High School v. Culvert, 815 F.2d 219, 223-24 (2d Cir. 1987) ("[B]ased on principles of federalism and comity, the Supreme Court held that a federal court should not enjoin a pending state administrative proceeding when important state interests are involved, as long as the federal plaintiff will have a full and fair opportunity to litigate constitutional claims during or after the proceedings.") — loses considerable force when the party who invoked federal jurisdiction then immediately reverses course and requests that the court not entertain the matter.
III. CONCLUSION
For the foregoing reasons, plaintiffs motion is granted. A pre-trial conference to set a time table for discovery and trial is scheduled for Thursday, January 8, 2004, at 3:00 pm.