Opinion · Court of Appeals for the Eighth Circuit

Larry Stradley v. Richard R. Andersen, as Chief of the Division of Police, Department of Public Safety, City of Omaha, Nebraska

Larry Stradley v. Richard R. Andersen, as Chief of the Div. of Police, Dep’t of Pub. Safety, City of Omaha, Neb., 456 F.2d 1063 (8th Cir. 1972)

Type
Opinion
Court
Court of Appeals for the Eighth Circuit
Jurisdiction
Federal
Date
1972-02-29
Topic
general

PER CURIAM. 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).

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Authority status
pending
Cited by
11 opinions
STRADLEY v. ANDERSEN,456 F.2d 1063(8th Cir. 1972)
LARRY STRADLEY, APPELLANT, v. RICHARD R. ANDERSEN, AS CHIEF OF THE DIVISION
OF POLICE, DEPARTMENT OF PUBLIC SAFETY, CITY OF OMAHA, NEBRASKA, APPELLEE.
No. 71-1363.
United States Court of Appeals, Eighth Circuit.
February 29, 1972.
Page 1064
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.
PER CURIAM.
[1] Plaintiff-appellant brought this suit pursuant to42 U.S.C. § 1983alleging 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).

[2] 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.

[3] Reversed and remanded for a trial on the merits.Page 1099