Murphy v. City of Manchester CV-98-541-B 09/17/99 P
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gregory J. Murphy
v. Civil No. C-98-541-B
City of Manchester, et a l .
MEMORANDUM AND ORDER
Gregory Murphy has filed a federal court complaint charging
that the Manchester Police Department and several of its
employees violated his First, Sixth, and Fourteenth Amendment
rights when they removed him from his position as a patrol
officer. He also asserts various state law claims. In this
order, I explain why I must dismiss Murphy's claims for
injunctive relief and stay his claims for damages based upon the
abstention doctrine announced in Younger v. Harris, 401 U.S. 37
(1971) .
I.
Murphy has been employed as a patrol officer by the
Manchester Police Department for approximately 15 years. At all relevant times, he also served as president of the Manchester
Police Patrolman's Association. On or about September 25, 1998,
Murphy was notified that he was being charged with five separate
violations of the police department's rules and regulations. The
police department subseguently dropped one of the charges. The
remaining four charges all stem from Murphy's union-related
activities, including an editorial he wrote for the July edition
of the union's newsletter and remarks he made to new recruits at
the invitation of the police department.1 On both occasions,
Murphy referred to certain Manchester police officers who had
crossed a picket line during a 1997 contract dispute as "scabs,"
and urged other officers not to embrace them as "brother
officers." In accordance with the police department's
regulations, Murphy could either admit his guilt and accept
summary punishment from the chief of police or contest the
charges in a hearing before the department's disciplinary board.
Murphy chose the second option, and a hearing was scheduled for
October 27, 1998.
1 The four remaining charges consisted of two counts of "disobedience or violation of [a] department regulation, rule, order, instruction, or memorandum," one count of "conduct unbecoming an officer," and one count of an "act or omission contrary to good order and discipline." PI. Mot. for Temp. Rest. Order and Prelim. Inj. 5 11 at 5 (Doc. 8).
-2- The police department's regulations authorize the police
chief to appoint the members of the disciplinary board. The
board is composed of a police commissioner, an individual serving
as the chief's designee, and a patrol officer or superior officer
chosen from a list of approved individuals presented to the chief
by the various bargaining bodies. See Manchester Police
Department Rules and Regulations and/or Standard Operating
Procedures ("MPD-SOP") at A-19-11, A-19-12. The board must hold
a hearing on a formal charge. See id. at A-19-15. If the
officer is found guilty, the board must then make a written
recommendation to the police chief concerning appropriate
discipline. See id. Officers appearing before the board are
entitled to be represented by counsel. See id. at A-19-11.
Although proceedings before the board are not governed by formal
rules of evidence, officers may present evidence, cross-examine
witnesses, and otherwise challenge the police department's case.
See id.
Murphy filed a pre-hearing motion seeking to disgualify
Police Chief Mark Driscoll from participating in the disciplinary
process. See PI. Mot. for Temp. Rest. Order and Prelim. Inj. Ex.
H (Doc. 8). Murphy alleged that Chief Driscoll could not
participate because he had initiated the charges against Murphy
-3- and, therefore, was biased against him. See id. Murphy also
moved to recuse the police chief's designee to the board.
Lieutenant Thomas Steinmetz, because Steinmetz's appointment
allegedly violated a department regulation prohibiting a
"[s]uperior [o]fficer of the bargaining body" from serving on a
disciplinary board that is considering charges against a police
officer. See Pi. Mot. for Temp. Rest. Order and Prelim. Inj. Ex.
K (Doc. 8) (guoting MPD-SOP at A-19-12(F)). Finally, Murphy
attempted to have the city solicitor's office barred from
providing legal advice to the board because the city solicitor
had represented the police department in litigation against the
patrolman's association. See Pi. Mot. for Temp. Rest. Order and
Prelim. Inj. Ex. J (Doc. 8). The board denied all three motions
and rejected Murphy's motions to reconsider.
Shortly after the hearing began, Steinmetz ordered one of
Murphy's attorneys removed for inappropriate behavior. Murphy
subseguently appeared without counsel, refused to examine any
witnesses, and declined to present a defense. On November 19,
1998, the board found him guilty of each of the four charges. It
also recommended that he be suspended without pay for six months.
Chief Driscoll accepted the disciplinary board's findings. He
proposed to punish Murphy by: (1) suspending him without pay for
-4- six months; (2) requiring him to agree to refrain from "any
future conduct of the type described in the charges;" (3)
requiring him to agree that "any such future conduct will result
in his termination;" and (4) requiring him to apologize for his
misconduct. Murphy was terminated when he refused to accept the
proposed discipline.
Murphy has a right to appeal the police chief's ruling to
the Manchester Police Commission. See MPD-SOP at A-19-15(G). If
an appeal is taken, the commission must review the record and
determine whether to receive any additional evidence. See id. at
A-19-15, A-19-16. It then must determine de novo whether the
officer is guilty of the charged misconduct and whether the
discipline ordered by the police chief should be imposed. See
id. at A-19-16. Murphy may seek judicial review of a police
commission ruling by filing a petition for writ of certorari in
superior court. See id. at A-19-16(H) (providing that an
aggrieved officer may appeal to superior court); Kelley v. City
of Manchester, No. 94-E-170, slip op. at 2-3 (Hillsborough SS. N.
Dist. Jan. 29, 1995) (specifying that review of a police
commission's ruling is by writ of certiorari). Alternatively,
because Murphy claims that the disciplinary proceedings interfere
with protected union activities, he may challenge the police
-5- chief's order in an arbitration proceeding and appeal an adverse
ruling to the Public Employees' Labor Relations Board ("PELRB").
See N.H. Rev. Stat. Ann. § 273-A:6 (1987). He also has a right
to appeal an adverse PELRB ruling to the New Hampshire Supreme
Court. See N.H. Rev. Stat. Ann. § 273-A:14 (1987) . Murphy has
not invoked his right to arbitration. Nor has he yet sought
review of Chief Driscoll's decision by the police commission.
Murphy filed his federal court complaint one day before the
police department commenced formal disciplinary proceedings
against him. Murphy's complaint charges that Chief Driscoll's
termination order violates his First Amendment right to engage in
protected speech, his Fourteenth Amendment rights to substantive
and procedural due process,2 and his Sixth Amendment right to
counsel. The complaint also asserts several state law causes of
action. Murphy seeks both injunctive relief and damages.
II.
In Younger v. Harris, the United States Supreme Court,
2 Murphy asserts that his rights to due process are based on the Fifth Amendment. Since the Fifth Amendment does not apply directly to state and local officials acting under color of state law, however, I assume that Murphy intended to base his claims on the Fourteenth Amendment.
-6- citing considerations of comity, federalism, and equity, held
that federal courts may not "stay or enjoin pending state court
[criminal] proceedings except under special circumstances." 401
U.S. at 41. The Court has expanded the Younger abstention
doctrine in recent years and applied it to cases involving
certain civil judicial proceedings and administrative quasi
judicial proceedings. See, e.g., Huffman v. Pursue, Ltd., 420
U.S. 592, 594, 604-05 (1975); Trainor v. Hernandez, 431 U.S. 434,
444, 446 (1977); Middlesex County Ethics Committee v. Garden
State Bar Ass'n, 457 U.S. 423, 432 (1982); Ohio Civil Rights Comm'n v. Davton Christian Schools, Inc., 477 U.S. 619, 627-28
(1986); Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 11 (1987).
The Court has developed a four-part test, consisting of
three requirements and one exception, to determine whether the
Younger abstention doctrine applies in a particular case. First,
the federal case must affect pending state judicial proceedings.
See, e.g., Middlesex County, 457 U.S. at 432. Second, the
proceedings must implicate important state interests. See id.
Third, the state proceedings must afford the federal plaintiff
adequate opportunity to raise any constitutional claims. See id.
If each of these requirements is satisfied, abstention is
required unless the federal plaintiff establishes that the state
proceedings are tainted by bad faith, harassment, or some other
extraordinary circumstance. See id. at 437; see also Younger,
401 U.S. at 53-4. I review Murphy's federal complaint in light
of these four elements.
A. The First Younger Recruirement: Pending Judicial Proceedings
Murphy concedes that the disciplinary proceedings qualify as
"judicial proceedings" for purposes of the Younger abstention
doctrine. See Pi. Mem. at 4 (Doc. 17). He nevertheless argues
that the proceedings cannot be deemed to be "pending" because
they were not commenced until after he filed his federal court
-8- complaint and because he has not yet chosen to appeal the
termination order to the police commission. I examine each
argument in turn.
1. State proceedings commenced after the federal complaint was filed.
The Supreme Court has determined that a state proceeding
commenced after a federal complaint has been filed nevertheless
will be deemed to be "pending" for purposes of the Younger
abstention doctrine if no substantive actions concerning the
merits have occurred in the federal case prior to initiation of
the state proceeding. See Hicks v. Miranda, 422 U.S. 332, 349
(1975). In this case, the police department started the
disciplinary process before any substantive actions occurred in
the federal case. Accordingly, the disciplinary proceedings are
deemed to be "pending" for purposes of Younger abstention even
though they began after the federal complaint was filed.
2. State proceedings where an available administrative appeal has not yet been taken.
Murphy argues that the relief he seeks would not disrupt a
"pending" state proceeding because Chief Driscoll has issued his
termination order and Murphy has not appealed the order to the
police commission. I disagree. In Patsv v. Board of Regents, 457 U.S. 496 (1982), the
Supreme Court held that a federal plaintiff need not exhaust
administrative remedies before asserting a claim in federal court
for relief based on 42 U.S.C. § 1983. See id. at 516. If the
scope of this ruling had not been limited by a more recent
Supreme Court decision, Murphy might well have argued that it
authorized him to bypass the disciplinary hearing process
entirely by filing suit in federal court. This argument is
foreclosed, however, by the Court's decision Davton Christian
Schools, which specifies that Patsv is inapplicable to
administrative proceedings that "are coercive rather than
remedial, began before any substantial advancement in the federal
action took place, and involve an important state interest." 477
U.S. at 627-28 n.2; see also Kercado-Melendez v. Aponte-Rogue,
829 F.2d 255, 261 (1st Cir. 1987) ("[T]here is a significant
difference between a civil rights plaintiff who seeks to use the
federal courts to stop or nullify an ongoing state proceeding in
which she is a defendant, and a civil rights plaintiff who has an
option to initiate a state proceeding to remedy a constitutional
wrong perpetrated by a state actor. In the former case,
abstention is appropriate; in the latter, the Patsv rule
prevails.").
-10- The record in this case establishes that the police
department's disciplinary proceedings are precisely the type of
coercive administrative proceedings to which the Younger doctrine
was intended to apply. The police department commenced the
proceedings by issuing a complaint charging Murphy with
misconduct. Punishment was not imposed until after he had been
found guilty of the charged misconduct in an adversary hearing.
Murphy was not given a choice as to whether he wanted to
participate in the hearing. Instead, he could have avoided the
hearing only by admitting his guilt and accepting summary
punishment. Under these circumstances, Patsv provides no support
for Murphy's attempt to bypass the disciplinary hearing process.3
3 The First Circuit applied Patsv to permit a plaintiff to bypass state administrative proceedings in Kercardo-Melendez v. Aponte-Rogue. The present case, however, differs from Kercado- Melendez in two material respects. First, as the court recognized in Kercado-Melendez, the plaintiff in that case was given the option of initiating administrative proceedings to challenge a notice effectively discharging her for her position as superintendent of schools. See 829 F.2d at 261. Here, in contrast, the administrative proceedings were initiated by the police department to determine whether disciplinary action was warranted. Second, the plaintiff in Kercardo-Melendez did not challenge the legality of the administrative hearing process. See id. This fact was important to the court's ruling because, as the court noted, the comity and federalism concerns underlying the Younger doctrine are more directly implicated by a challenge to the legality of a state judicial proceeding. See id. In this case, unlike in Kercardo-Melendez, Murphy directly challenged the legitimacy of the administrative proceedings that led to his
-11- Murphy's contention that the Younger doctrine is
inapplicable because the administrative proceedings ended when he
declined to appeal the police chief's termination order also
lacks merit. In rejecting a similar argument made by a plaintiff
who had challenged a state trial court ruling by filing suit in
federal court rather than pursuing an appeal in state court, the
Supreme Court stated,
[v]irtually all of the evils at which Younger is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such intervention occurred at or before trial. Intervention at the later stage is if anything more highly duplicative, since an entire trial has already taken place, and it is also a direct aspersion on the capabilities and good faith of state appellate courts. Nor . . . is federal intervention at the appellate stage any the less a disruption of the State's efforts to protect interests which it deems important. Indeed, it is likely to be even more disruptive and offensive . . . .
Huffman, 420 U.S. at 608-09. These arguments apply with egual
force in the present case because Murphy's decision to file a
federal court complaint before exhausting his administrative
remedies threatens to undermine the hearing process established
termination. Thus, this case directly implicates the concerns on which the Younger doctrine is based.
-12- by the police department for the adjudication of disciplinary
complaints. See O'Neill v. City of Philadelphia, 32 F.3d 785,
791 (3d Cir. 1994) (Younger abstention applies to final
administrative rulings that have not been appealed to state
court); Alleghany Corp. v. Pomeroy, 898 F.2d 1314, 1317-18 (8th
Cir. 1990) (same); but c f . Norfolk & Western Rv. v. Pub. Util.
Comm'n of Ohio, 926 F.2d 567, 572-73 (6th Cir. 1991) (Younger
abstention does not apply if administrative proceedings have been
completed and the agency's ruling has not been appealed); Thomas
v. Texas State Bd. of Med. Exam'rs, 807 F.2d 453, 456 (5th Cir.
1987) (same). Accordingly, I reject Murphy's contention that no
state proceedings were pending for purposes of Younger abstention
simply because he has failed to appeal to the police commission.
B. The Second Younger Recruirement: Important State Interests are Implicated
Murphy next argues that Younger abstention is inappropriate
because the disciplinary proceedings do not implicate important
state interests. I also find this contention unpersuasive.
Murphy was charged with multiple violations of the police
department's regulations. The supervision of law enforcement
personnel sworn to protect and serve the public unguestionably
involves an interest of vital importance to state (or, in this
-13- case, municipal) government. See Gniotek v. City of
Philadelphia, 630 F. Supp. 827, 835 (E.D. Pa.) ("[S]tate action
in dismissing the plaintiff police officers was intended to
vindicate an important policy . . . for the protection of its
residents . . . ."), aff'd , 808 F.2d 241 (3d Cir. 1986); Fontaine
v. City of Chester, No. 85-2453, 1986 U.S. Dist. LEXIS 21240, at
*11 (E.D. Pa. Aug. 28, 1986) (concluding that city had a
"paramount interest in performing its legitimate government
function of supervising and disciplining its law enforcement
officials"); McDonald v. Metro-North Commuter R.R. Div. of Metro.
Transit Auth., 565 F. Supp. 37, 40 (S.D.N.Y. 1983) ("New York
State's interest in disciplining police officers . . . is the
sort of important state interest which precludes federal
interference . . . ."). Accordingly, there is little guestion
that the underlying disciplinary proceedings against Murphy
implicate an important state interest for the purposes of Younger
analysis .
C. The Third Younger Recruirement: An Adequate Opportunity to Raise Constitutional Challenges
_____ Younger's third reguirement mandates that a federal
plaintiff must have "an adeguate opportunity in the state
proceedings to raise constitutional challenges." Middlesex
-14- County, 457 U.S. at 432. A federal plaintiff alleging an
inability to raise constitutional claims must demonstrate that
"state procedural law barred [the] presentation of [his or her
constitutional] claims." Pennzoil, 481 U.S. at 14 (guoting Moore
v. Sims, 442 U.S. 415, 432 (1979)); Brooks v. New Hampshire
Supreme Court, 80 F.3d 633, 639 (1st Cir. 1996). In cases such
as this, where the federal court plaintiff did not attempt to
present his constitutional claims during the state proceedings, a
federal court "should assume that state procedures will afford an
adeguate remedy, in the absence of unambiguous authority to the
contrary." Pennzoil, 481 U.S. at 15.
Murphy has failed to produce any evidence to support his
assertion that the police department's regulations prevented him
from presenting his constitutional claims to the disciplinary
board. Nor has he suggested that the police commission would
refuse to consider his claims if he were to appeal the
termination decision. The members of both bodies have a duty to
uphold the Constitution and absent evidence that one or more
board members are biased against him, I am unwilling to presume
that they are not prepared to discharge their constitutional
responsibilities .
In any event, even if the disciplinary board had refused to
-15- consider Murphy's constitutional claims. Younger's adequate
opportunity requirement would be satisfied if Murphy is accorded
a meaninqful chance to present his claims durinq the judicial
review process. See Davton Christian Schools, 477 U.S. at 629;
Sullivan v. City of Pittsburgh, Pa., 811 F.2d 171, 177 (3d Cir.
1987). Murphy arques that state law does not qive him this
opportunity because the only way that he could have obtained
judicial review of an adverse police commission rulinq is by
filinq a petition for writ of certiorari with the superior court.
He arques that this opportunity for judicial review is inadequate
because the court has discretion to reject his petition without
addressinq the merits of his constitutional claims.
In Fieqer v. Thomas, 74 F.3d 740 (6th Cir. 1996), the Sixth
Circuit recently considered whether state law accordinq a federal
plaintiff a riqht to seek discretionary judicial review from an
adverse aqency decision is sufficient to satisfy Younger's
adequate opportunity requirement. There, an attorney faced
compulsory hearinqs before a state bar association disciplinary
board. The attorney claimed that the proceedinqs offered him an
inadequate forum to raise his constitutional challenqes, and
urqed the inapplicability of Younger abstention because state law
did not afford him an automatic state court appeal from the
-16- administrative proceedings. See Fieqer, 74 F.3d at 747-48. The
court of appeals rejected both contentions.On the attorney's
first claim, the court stated,
Fieger has failed to demonstrate that members of the hearing panel and the Board, "the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees." . . . Even if the Board could not declare a Rule of Professional Conduct unconstitutional . . . [t]he Board could . . . refuse to enforce it or, perhaps, narrowly construe it. We are not convinced, therefore, that Fieger is unable to raise his constitutional claims in the disciplinary proceedings.
Id. (guoting Middlesex County, 457 U.S. at 435). The court also
rejected the attorney's second contention, noting instead that
"the ability to raise constitutional issues before the Board as
well as an opportunity to raise them again in a petition for
leave to appeal satisfies the third reguirement for Younger
abstention." Id. at 749; see also Hirsh v. Justices of Supreme
Court of California, 67 F.3d 708, 713 (9th Cir. 1995) (per
curiam) (holding that availability of discretionary judicial
review is sufficient to satisfy third Younger reguirement);
Beltran v. California, 871 F.2d 777, 781, 783 (9th Cir. 1988)
(third Younger reguirement met when plaintiff has the opportunity
to present federal claims in a petition for a writ of review
-17- despite the fact that state court simply "denied the petition
without elaboration"); Martori Bros. Distribs. v. James-
Massenqale, 781 F.2d 1349, 1352, 1354 (9th Cir.) (discretionary
review of an administrative proceeding by an appellate court
affords a sufficient opportunity to raise federal constitutional
challenges to satisfy the third Younger reguirement), amended on
other grounds, 791 F.2d 799 (9th Cir. 1986); Fresh Int'l Corp. v.
Agric. Labor Relations Bd., 805 F.2d 1353, 1362 (9th Cir. 1986)
(same).
I am persuaded by the reasoning of Fieqer that a federal
plaintiff has an adeguate opportunity to raise constitutional
claims in state court if the plaintiff has the right to present
his claims in a petition for discretionary review. Notwith
standing Murphy's unsupported assertions to the contrary. New
Hampshire law permits an aggrieved party to raise constitutional
challenges in a certiorari petition. See Petition of
Preisendorfer, 143 N.H. 50 (1998) (considering state constitu
tional challenge). Accordingly, Murphy has been given an
adeguate opportunity to raise his constitutional claims during
the state proceedings.4
4 Garbrilowitz v. Newman, 582 F.2d 100, 101-02 (1st Cir. 1978) is inapposite. The court's opinion in that case was based
-18- D. The Bias Exception: No "Exceptional Circumstances" _____ are Present
After determining that the three primary requirements for
Younger abstention have been met in a given case, a federal court
ordinarily should abstain from acting on a complaint that would
interfere with ongoing state judicial proceedings. The Younger
abstention doctrine does not bar federal court action, however,
when the state proceedings are so tainted by personal interest or
prejudgment that the proceedings themselves violate plaintiff's
constitutional right to due process of law. See Gibson v.
Berrvhill, 411 U.S. 564, 578-79 (1973). Murphy argues that the
police department's disciplinary proceedings are tainted by
impermissible bias because (1) Chief Driscoll improperly
"commingled investigative, accusative and adjudicative
functions," Pl.'s Mem. at 13, by participating in the
investigation, signing the complaint, and serving as the final
decisionmaker reviewing the disciplinary board's findings and
recommendations; (2) board member Steinmetz was appointed in
violation of department regulations and is one of the
prosecutor's supervisors; and (3) the board received legal advice
in part on the fact that the plaintiff had no opportunity to obtain state court judicial review from an adverse adminis trative ruling. See 582 F.2d at 102. Thus, to the extent that Garbrilowitz remains good law, it is distinguishable.
-19- from the city solicitor's office, which in the past has
represented the city in litigation with the patrolman's
association. I address each argument in turn.
1. Chief Driscoll
The short answer to Murphy's bias claim against Chief
Driscoll is that the First Circuit has already rejected an
identical claim arising from indistinguishable facts. In
Brasslett v. Cota, 761 F.2d 827, 837 (1st Cir. 1985), a local
fire chief who had been discharged sued the town and the town
manager who fired him. The fire chief argued, among other
things, that the defendants violated his right to procedural due
process because the town manager both initiated the charge that
led to the dismissal and served as the final decisionmaker on the
charge after receiving a recommended disposition from the town's
appeals board. See id. at 829-30, 833. In rejecting the fire
chief's procedural due process challenge, the court held that an
administrator may not be presumed to be constitutionally biased
merely because he or she issued both the initial discharge
decision and the final decision after a hearing before the
appeals board. See id. at 837; see also Withrow v. Larkin, 421
U.S. 35, 47-48, 55 (1975). This holding plainly bars Murphy from
basing a bias claim solely on the structure of the disciplinary
-20- hearing process. Since Murphy has produced no evidence of bias
against Chief Driscoll other than the kind of "free-floating
invective, unanchored to specific facts" that the First Circuit
has elsewhere found to be insufficient. Brooks 80 F.3d at 640, I
reject Murphy's claim that Driscoll was biased against him.
2. Lieutenant Steinmetz
Murphy's bias charge against Lieutenant Steinmetz fares no
better. The mere fact that Steinmetz supervises one of the
prosecutors charged with presenting evidence against Murphy does
not establish that he has an interest in the case or that he
prejudged the matter. Nor does it suggest improper bias if, as
Murphy claims, Steinmetz was appointed in violation of a
department regulation. Without some evidence that Steinmetz
either prejudged the case or had some kind of personal interest
in its outcome, Murphy's allegations simply are insufficient to
support a claim of bias.
3. City Solicitor
Murphy's suspicions that the city solicitor harbors a bias
against him because the solicitor's office previously represented
the city in litigation against the patrolman's association also
fails to support a viable bias claim. Murphy has cited no case
law to support his assertion that a city attorney is disabled
-21- from advising a disciplinary board considering charges against a
union official if the attorney has represented the city in other
litigation against the union. This argument is simply too
attenuated to support a claim of unconstitutional bias on the
part of either the city solicitor or the disciplinary board. I
thus reject Murphy's claim that exceptional circumstances are
present in this case that warrant an exception to the Younger
abstention doctrine.5
5 The exclusion of one of Murphy's attorneys from the administrative hearing also is not the kind of unusual circumstance that would warrant an exception to the Younger abstention doctrine. The police department's regulations give Murphy an adeguate opportunity to present his argument on this issue initially to the police commission and ultimately to a state court through a petition for writ of certiorari. See, e.g., Mann v. Jett, 781 F.2d 1448, 1448-49 (9th Cir. 1986) (per curiam) (applying Younger abstention to claim that defendant was being denied the assistance of counsel in a state criminal proceeding); Indiana v. Haws, 131 F.3d 1205, 1210 (7th Cir. 1997), cert, denied sub nom. In re Bisbee, 118 S. C t . 1803 (1998) .
-22- III. CONCLUSION
Because the tripartite test for Younger abstention has been
satisfied and no "exceptional circumstances" exist, I must
abstain from reaching the merits of this case. Accordingly,
Murphy's claims for injunctive relief are dismissed without
prejudice. His claims for damages are stayed pending the
resolution of state proceedings.6 See Kvricopoulos v. Town of
Orleans, 967 F.2d 14, 15-16 n.l (1st Cir. 1992) (noting that
"[a]s for § 1983 damages actions, it is appropriate to stay the
federal action pending the conclusion of the state . . .
proceedings") (emphasis in original). All other pending motions
6 The police department's regulations do not specify a time limit within which an appeal to the police commission must be taken. If Murphy has forfeited his right to review by unreasonably delaying his appeal, it is likely that his claims in this action will be barred by administrative res judicata. See, e.g., Morin v. J.H. Valliere Co., 113 N.H. 431, 433 (1973). I decline to reach this issue now, however, because I cannot determine on the present record whether Murphy has forfeited his right to appeal.
-23- are denied.
SO ORDERED.
Paul Barbadoro Chief Judge
September 17, 1999
cc: Kenneth J. Gould, Esq. Frank Mondano, Esq. Mark Broth, Esq.
-24-