represented at trial by then Assistant District Attorney Joel Moldovsky, another defendant in this case. Other prosecutors named as defendants are Arlen Spector, Richard A. Sprague, and Eugene V. Alessandroni, II, who are respectively the District Attorney of Philadelphia County, the First Assistant District Attorney, and Assistant District Attorney in charge of litigation. Following his conviction, plaintiff appealed to the Superior Court of Pennsylvania. That appeal is still pending at this time.
In this case, plaintiff seeks declaratory and injunctive relief against the enforcement of those statutes under which he was convicted, and against the enforcement of all Pennsylvania statutes regulating obscenity and sexual conduct between consenting individuals, on the ground that all of these statutes violate the First and Fourteenth Amendments. Plaintiff also asks this court for an injunction barring further proceedings in his state prosecution on the grounds that he was convicted under one of these allegedly unconstitutional statutes and because certain of the defendants, individually and in concert, acted so as to deny him a fair trial. In addition, plaintiff seeks compensatory and punitive damages against each of the above named defendants who were involved in the prosecution, as well as the City of Philadelphia.
The remaining defendants are Frank Rizzo, then Police Commissioner of Philadelphia, Hugh McCullough a police Inspector, and Joseph Beck, a detective. Plaintiff seeks damages against Inspector McCullough for allegedly disseminating prejudicial pre-trial publicity at a news conference subsequent to plaintiff's arrest. Plaintiff claims that defendant Rizzo is vicariously liable for his inspector's actions. No allegations whatsoever are lodged against defendant Beck, except that he was the arresting officer. All of the defendants have moved to dismiss the complaint. For the reasons stated below, we will grant these motions.
We begin with plaintiff's claim for declaratory and injunctive relief against the future enforcement of all Pennsylvania statutes relating to obscenity and sexual conduct between consenting individuals. At oral argument, plaintiff conceded that there are no threatened prosecutions against him at this time. Consequently, this aspect of his case must be dismissed for lack of a genuine controversy. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
Next, injunctive and declaratory relief which would bar further proceedings in his state prosecution cannot be issued under the doctrine of Younger v. Harris, supra and the companion cases which expressly forbid interference with a state prosecution except in extraordinary circumstances where there is bad faith or a threat to the plaintiff's federally protected rights that cannot be eliminated in a single prosecution. Although plaintiff has made allegations of bad faith in the trial of his case, he has not specifically alleged that the Pennsylvania appellate courts are unable or unwilling to entertain his appeal in good faith or that these courts will not be able to remedy the threats, if any, to his federally protected rights in a single decision. Even his amended complaint which lists all of the reasons for bias in the trial court (if any) does not give this court any reason whatsoever to believe that the entire Pennsylvania judiciary is biased against Marvin Burak. Since this suit was filed in 1970 after the completion of the trial, allegations of bad faith and irreparable harm are meaningless, unless they relate to the appeal process. While Younger, et al. all dealt with injunctive and declaratory judgments before trial, we think that the same equitable principles support a "hands off" policy through the state appeal process as well. We hold that where a suit seeking to enjoin a state prosecution is not filed until after the trial ends, even if the trial was conducted in bad faith, the state court system should still have the first opportunity to correct these deficiencies, including the bad faith issue, as long as it is "capable" of doing so. And in this case, we have no evidence that the Superior and/or Supreme Court will act in bad faith or cannot protect plaintiff's federal rights in a single decision.
The fact that plaintiff bases his claim for injunctive and declaratory relief against further state proceedings on Federal constitutional allegations some of which were not raised on appeal before the Pennsylvania Superior Court does not change this result. The rationale of Younger, et al. simply forbids us to intervene with injunctive and/or declaratory relief at this point in the state prosecution.
On the other hand, plaintiff's claim for damages premised on his prosecution under an unconstitutional statute as well as a conspiracy (or individual acts) to deny him a fair trial is not barred by Younger, et al. because it does not interfere at all with the state prosecution. Nevertheless, we must dismiss the complaint against each named defendant.
First, the two Judges and the District Attorney and his Assistants enjoy immunity from suit for damages based on their action as state officials. See Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Gaito v. Ellenbogen, 425 F.2d 845 (3rd Cir. 1970); Henig v. Odorioso, 385 F.2d 491 (3rd Cir. 1967); Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966). And it is apparent that these defendants were acting in their official capacities when they allegedly violated his constitutional rights.
Secondly, plaintiff cannot recover from the City of Philadelphia because as a municipality it is not a "person" within the meaning of 42 U.S. § 1983. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).
Thirdly, as to defendant Beck, plaintiff has made no allegations, except that Beck was the arresting officer. He does not allege that the arrest was made in bad faith and without probable cause. See Pierson v. Ray, supra. Consequently, the complaint against him must be dismissed for failure to state a claim upon which relief may be granted. See Fed. R. Civ. Proc. 12.
Finally, plaintiff has not alleged with any particularity the nature of the pre-trial publicity allegedly disseminated by Inspector McCullough, nor has he stated how these statements, if any, prejudiced him at his state court trial. Without such information, defendant McCullough is unable to respond intelligently to the complaint, and the plaintiff has failed to state a claim upon which relief might be granted. Cf. Negrich v. Hohn, 379 F.2d 213 (3rd Cir. 1967). On October 19, 1971, this court extended an opportunity to the plaintiff to amend his complaint to cure these deficiencies. He has not adequately complied with that order of the court, and as a result his complaint against defendant McCullough must be dismissed. Since none of the police officers originally named remains in this suit, then Police Commissioner Rizzo cannot be held liable on the theory of respondeat superior. For this reason, the complaint against him must be dismissed as well.