Summary
finding that purpose of Civil Rights Act § 1983 precludes forcing forum choice on plaintiff by requiring exhaustion of state's avenues of litigation in a case where right alleged is plainly federal in origin and nature
Summary of this case from Varallo v. Elkins Park Hospital and Tenet Healthcare Corp.Opinion
No. 71-1363.
February 29, 1972.
Bennett G. Hornstein, Stanley A. Krieger, Bruce G. Mason, Omaha, Neb., for appellant.
James E. Fellows, Kent N. Whinnery, Omaha, Neb., for appellee.
Appeal from the United States District Court for the District of Nebraska.
Before MATTHES, Chief Judge, and LAY and ROSS, Circuit Judges.
Plaintiff-appellant brought this suit pursuant to 42 U.S.C. § 1983 alleging deprivation of his constitutional rights by the order of his employer, the Omaha Police Division, governing the length and style of hair and mustaches of Omaha police officers. The district court, Judge Denney, after hearing the evidence of the parties, dismissed the complaint for failure to exhaust administrative remedies through union contract and statutory grievance procedures, and for reasons of comity inhering in the abstention doctrine. Stradley v. Andersen, 334 F. Supp. 72 (D.Neb. 1971).
In this case, however, the "right alleged is . . . plainly federal in origin and nature, . . . no underlying issue of state law [is] controlling, . . . [n]or is the federal right in any way entangled in a skein of state law that must be untangled before the federal case can proceed." McNeese v. Board of Educ., 373 U.S. 668, 674, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963). The law is well-settled that in such cases the very purpose of § 1983 precludes forcing a forum choice on the plaintiff by requiring exhaustion of the state's avenues of litigation. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 409-410, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Educ., supra; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The same reasoning makes it improper to abstain in this case. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The special circumstances attendant to enjoining a state prosecution are not present here and thus the district court's reliance on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) is misplaced.
Reversed and remanded for a trial on the merits.