B. Bad Faith Exception
There are exceptions to the Younger doctrine. Federal courts
may intervene where the state court proceeding is conducted in
bad faith or is motivated by a desire to harass, or where a state
statute is flagrantly and patently unconstitutional. See
Huffman, 420 U.S. at 611, 95 S.Ct. 1200. Plaintiffs contend that
the bad faith exception applies. We disagree.
Courts have considered three factors in determining whether a
prosecution is commenced in bad faith or to harass: (1) whether
the prosecution is frivolous or undertaken "without a reasonable
expectation of obtaining a valid conviction," Kugler v.
Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 44 L.Ed.2d 15
(1975); (2) whether it was motivated by the defendant's suspect
class or in retaliation for the defendant's exercise of
constitutional rights, Younger, 401 U.S. at 48, 91 S.Ct. 746;
and (3) "whether it was conducted in such a way as to constitute
harassment and an abuse of prosecutorial discretion, typically
through the unjustified and oppressive use of multiple
prosecutions[.]" Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th
Cir. 1995) (citations omitted). Plaintiff's argue that the
prosecution was brought in retaliation for their exercise of
constitutional rights, the multiple citations have little
likelihood of success on the merits, others similarly situated
were not prosecuted, and the sheer number of citations
constitutes harassment and bad faith.
Although it is a close question, we find that this case is
without the bad faith exception. Plaintiffs have failed to allege
that defendants Cimino, Graziano and Bruce had any involvement
in, or were even aware of, either the tax deficiency lawsuit
filed by the City or lawsuits in which plaintiff successfully
represented parties suing the City. Absent such allegations, the
bad faith exception is inapplicable. Cf. Juidice v. Vail,
430 U.S. 327, 338, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (bad faith
exception did not apply where plaintiff failed to sufficiently
allege that defendants or the state court judiciary were
motivated by bad faith or a desire to harass plaintiffs).
Moreover, where a City Magistrate found that several (8) of the
citations have merit, we cannot say that the action was brought
without any chance of success on the merits. See Hicks v.
Miranda, 422 U.S. 332, 351, 95 S.Ct. 2281, 45 L.Ed.2d 223
(1975). In addition, although there were a total of 16 or 17
citations, it appears that all of the citations were ruled on or
disposed of at the March 24 hearing. Thus, this case does not
present a situation in which plaintiffs were subjected to
multiple prosecutions or lawsuits. Compare Krahm v. Graham,
461 F.2d 703, 705-07 (9th Cir. 1972) (bad faith found when city
officials filed over 100 cases against plaintiffs despite
acquittals in first 11 cases), with Collins v. County of
Kendall, Ill., 807 F.2d 95, 99 (7th Cir. 1986) (no bad faith
where county officials filed over thirty lawsuits over two year
period), and Phelps, 59 F.3d at 1066 ("multiple prosecutions
may not be overly burdensome if the prosecutions are, or are
likely to be, consolidated into a single trial.").
Plaintiffs' claim for equitable relief seeks an amendment to
the City's Building Code, prohibiting defendant Cimino from
advising the Board of Standards and Appeals. Plaintiffs contend
that Cimino's role as advisor to the Board "commingle[s] the
judicial and prosecutorial functions." Pl's Br. in Opp. to Mot.
to Dismiss at p. 3. The City Building Code provides, in relevant
part, that: "The code official of both the Building Code and the
Fire Prevention Code or a designated member of their staff shall
act in the capacity of non-voting technical advisors to the
[B]oard [of Standards and Appeals]." Pittsburgh Building Code §
121.2.5 (Ex. to Defs.' Mot. to Dismiss and Mem. in Supp.). We
cannot conclude that, because a city official serves as a
non-voting advisor to the Board, this code provision constitutes
an impermissible encroachment on the judicial function of the
board or that it violates separation of
powers' principles.*fn2 See, e.g., Mistretta v. United States,
488 U.S. 361, 409-11, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)
(President's power to appoint and remove members of the
Sentencing Commission is neither an unconstitutional usurpation
of judicial power nor does it "afford [the President] influence
over the functions of the Judicial Branch"); Young v.
Commonwealth of Pa. Bd. of Probation and Parole, 487 Pa. 428,
409 A.2d 843, 848 (Pa. 1979) (Parole Board's power to deny credit
for time served on parole does not unconstitutionally infringe
the power of the judicial branch to impose sentence).
Nor can we conclude that this provision compromises the
impartiality of the board as to warrant federal intervention.
Cf. Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. 1524 (no bad faith
where plaintiff alleged that certain members of the New Jersey
Supreme Court and the Deputy Attorney General improperly coerced
his grand jury testimony). Whether the Building Code is
constitutional, on its face or as applied, can be addressed by a
state court. In sum, it cannot be said that defendants acted in
bad faith in citing plaintiffs for building code violations.
Accord Hicks, 422 U.S. at 350-52, 95 S.Ct. 2281.
To the extent that plaintiffs are seeking money damages, we are
required to retain jurisdiction over this portion of the claim.
See Deakins v. Monaghan, 484 U.S. 193, 203-04, 108 S.Ct. 523,
98 L.Ed.2d 529 (1988) ("even if the Younger doctrine requires
abstention here, the District Court has no discretion to dismiss
rather than to stay claims for monetary relief that cannot be
redressed in the state proceeding."). We shall stay the case
until the underlying state court proceedings are concluded. Id.
at 202-03, 108 S.Ct. 523. However, the money damages claim
entails further discussion.
C. Prosecutorial Immunity
To the extent that plaintiffs seek money damages from the
individual City defendants in their personal and official
capacities, we hold that the doctrine of prosecutorial immunity
bars the claim.*fn3 Prosecutorial immunity applies to officials
who, although not prosecutors, perform prosecutorial functions
such as initiating administrative or quasi-criminal proceedings.
See, e.g., Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894,
57 L.Ed.2d 895 (1978). The Nernbergs allege that "Richard Bruce,
Dominic Cimino and Ronald Graziano, issued or caused to be issue
a series of citations against the Nernbergs, relating to alleged
building violations." Pls.' Compl. at ¶ 4. The gravamen of the
complaint is that defendants allegedly acted in bad faith in
prosecuting the Nernbergs for building code violations.
Therefore, we find that the doctrine of prosecutorial immunity
bars the damages claim against Cimino, Graziano, and Bruce.*fn4
Accord Davis v. Grusemeyer, 996 F.2d 617, 631-32 (3d Cir. 1993)
who allegedly assisted prosecutors in investigation, entitled to
absolute immunity); Spear v. Town of West Hartford, 954 F.2d 63,
66 (2d Cir. 1992) (police chief, who was acting town manager and
who authorized suit against plaintiff, was entitled to absolute
In sum, we will dismiss plaintiffs' section 1983 claim for
injunctive and equitable relief. We will also dismiss plaintiffs'
section 1983 claim for money damages against Dominic Cimino,
Ronald Graziano, and Richard Bruce. We will stay plaintiffs'
section 1983 claim for money damages against the City of
Pittsburgh pending resolution of the underlying state court
proceedings. An appropriate order will follow.