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April 30, 1999


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


Pending before the court is the motion (doc. no. 11) of defendants, City of Pittsburgh, Dominic Cimino, Ronald Graziano, and Richard Bruce (collectively "city defendants"), to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted, and the motion (doc. no. 8) of plaintiffs, Maurice and Nancy Nernberg ("the Nernbergs"), for a temporary restraining order or a preliminary injunction. The Nernbergs filed suit against the city defendants under 42 U.S.C. § 1983 seeking injunctive relief from administrative and criminal proceedings regarding plaintiffs' alleged violations of the City Building Code, equitable relief requiring the City to amend its Building Code, and money damages.

Plaintiffs claim that they are victims of selective prosecution. More specifically, the Nernbergs contend that the City is maliciously retaliating against them because (1) "one of the Plaintiffs is counsel for parties" who have sued and obtained large verdicts against the City; and (2) the City recently filed a criminal complaint against the Nernbergs for failure to pay certain taxes and a city magistrate dismissed the charges. Defendants have moved to dismiss plaintiffs' complaint for failure to state a claim under section 1983.


The Nernbergs allege that:

  from early November through December of 1998, . . .
  [defendants] Richard Bruce, Dominic Cimino and Ronald
  Graziano, issued or caused to [be] issue[d] a series
  of citations against the Nernbergs, relating to
  alleged building violations. There are a total of
  seventeen (17) citations. Each is for either a minor,
  insignificant or non existent violation.

Pls.' Compl. at ¶ 4. Plaintiffs maintain that the City unlawfully issued building code citations to harass plaintiffs in retaliation for the dismissal of the City's criminal charges against plaintiffs and for plaintiff's successful representation of other parties in lawsuits against the City. See Pls.' Br. in Opp. to Mot. to Dismiss at pp. 4-5. The Nernbergs also maintain that the cost of obtaining judicial review of the citations would be approximately $2000 and that this fact illustrates irreparable harm.

Defendants assert that, on March 24, 1999, a Pittsburgh Housing Court Magistrate held a hearing regarding 16 of the building code citations against the Nernbergs, resulting in "8 findings of guilty, 5 dismissals, 1 dismissal with the right of the inspector to re-file under the correct code section, 1 continuation for 30 days, and 1 withdrawal by the City." Defs.' Resp. to Pls.' Ltr. at p. 1. Defendants allege that plaintiffs have a right to appeal the convictions within thirty days to the Court of Common Pleas of Allegheny County for a trial de novo. Id.


On a motion to dismiss, we must view the allegations of the complaint and reasonable inferences as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Melikian v. Corradetti, 791 F.2d 274, 276 (3d Cir. 1986). A motion to dismiss cannot be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If it appears that the facts alleged in the complaint, even if true, fail to support the plaintiff's claim, the court may grant a motion to dismiss. Ransom v. Marazzo, 848 F.2d 398, 401 (3d Cir. 1988).

A. Younger Abstention

In the landmark case of Younger v. Harris, the Supreme Court held that a federal court should abstain from interfering in a pending state court criminal proceeding when the moving party has an adequate remedy at law and when the state proceeding involves important state interests. 401 U.S. 37, 53-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger abstention applies equally to pending state court civil cases and administrative proceedings. See Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 17, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (district court should have abstained from action challenging constitutionality of enforcement of state court judgment where losing party was required to post significant bond to appeal judgment); Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 437, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (federal court should not interfere in county bar association's administrative proceeding concerning lawyer's ethical violations); Huffman v. Pursue, Ltd., 420 U.S. 592, 609, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (federal court should not interfere in state court civil nuisance proceeding). Younger abstention is appropriate where the following requirements are met: (1) the state proceedings are judicial in nature; (2) the proceedings implicate important state interests; and (3) the federal plaintiff has an adequate opportunity in the state proceedings to raise constitutional challenges. Middlesex, 457 U.S. at 432, 102 S.Ct. 2515; see also FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996) (citation omitted).

To the extent that plaintiffs seek injunctive relief from prosecution and equitable relief to amend the Building Code, all three Younger requirements are met. First, the state proceedings are judicial in nature. As rehearsed, there was a hearing before a Pittsburgh Housing Court Magistrate.

Second, the proceedings implicate important state interests. The city's criminal action against plaintiffs for violating the City Building Code implicates important state interests "in enforcing . . . state and local housing codes[.]" Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir. 1998); cf. Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 633 (3d Cir. 1991) (land use issues ...

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