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
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
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 ...