Annie C. Gornto, Plaintiff-appellant, v. Glenn Thomas, Jr., and R. O. Weaver, Defendants-appellees, 439 F.2d 1406 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 439 F.2d 1406 (5th Cir. 1971) March 16, 1971

William R. King, Hugh W. Gibert, Atlanta, Ga., Jack S. Hutto, Brunswick, Ga., R. C. Freeman, III, Haas, Holland, Freeman, Levison & Gibert, Atlanta, Ga., for appellant.

William R. Killian, Brunswick, Ga., for appellees.

Arthur K. Bolton, Atty. Gen., State of Georgia, Atlanta, Ga., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., amici curiae.

Before TUTTLE, BELL, and GOLDBERG, Circuit Judges.


Appellant, a bookstore operator under indictment and facing prosecution for allegedly violating the Georgia obscenity laws, Ga. Code §§ 26-2101 and 6301, sought a declaratory judgment that these laws were unconstitutional and that an arrest warrant could not be issued without a prior adversary hearing. She also sought injunctive relief to avoid prosecution and for other purposes.

The district court dismissed the complaint on the merits and this appeal followed. The supervening Supreme Court decisions in Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 28 L. Ed. 2d 669 [Feb. 23, 1971]; Samuels v. Mackell, 1971, 401 U.S. 66, 91 S. Ct. 764, 28 L. Ed. 2d 688, [Feb. 23, 1971]; Perez v. Ledesma, 1971, Part I, 401 U.S. 82, 91 S. Ct. 674, 28 L. Ed. 2d 701 [Feb. 23, 1971], make it clear that appellant was not due to have her complaint considered on the merits. No irreparable damage in the form of bad faith, harassment or otherwise is alleged. The proper disposition under these decisions is to dismiss the complaint without reaching the merits. Samuels v. Mackell, supra. We vacate and remand with direction that the complaint be dismissed for failure to state a claim for federal intervention.

Vacated and remanded with direction.