The State of Illinois most certainly has an important interest in ensuring the quality of dentistry. The Illinois legislature has determined that the practice of dentistry affects the public health, safety and welfare, thus subjecting the profession to regulation and control of the public interest. See Ill. Rev. Stat. ch. 111, P 2302. The Seventh Circuit has agreed with this assessment, see Sutker, 808 F.2d at 636 (Illinois Dental Practice Act valid exercise of state's police power to regulate matters of health and safety), and plaintiffs do not claim otherwise.
The Illinois Dental Practice Act provides that in disciplinary proceedings both sides "shall be accorded ample opportunity to present in person, or by counsel, such statements, testimony, evidence and argument as may be pertinent to the charges or to any defense thereto." Ill. Rev. Stat. ch. 11, P 2327. Additionally, the Act states that all final administrative decisions are subject to judicial review under the Administrative Review Act. Id., P 2332. As plaintiffs concede, in that state law does not clearly bar the interposition of the current constitutional claims at any stage of their state proceedings (both criminal and administrative), the three threshold Younger conditions have been satisfied.
Nevertheless, plaintiffs contend that the instant case presents one of three exceptions to abstention under Younger and its progeny. Specifically, plaintiffs claim that the state charges leveled against them were motivated by bad faith, as demonstrated by defendants' selective prosecution. The exception for prosecutorial bad faith, however, is quite narrow. Bad faith, for the purposes of Younger, entails a showing that "the statute was enforced against [plaintiffs] with no expectation of convictions but only to discourage exercise of protected rights." Cameron v. Johnson, 390 U.S. 611, 621, 88 S. Ct. 1335, 1341, 20 L. Ed. 2d 182 (1968); see also Pincham v. Illinois Judicial Inquiry Bd., 872 F.2d 1341, 1349-50 (7th Cir.), cert. denied, 493 U.S. 975, 110 S. Ct. 497, 107 L. Ed. 2d 501 (1989); Collins v. County of Kendall, 807 F.2d 95, 101 (7th Cir. 1986), cert. denied, 483 U.S. 1005, 107 S. Ct. 3228, 97 L. Ed. 2d 734 (1987). Thus, allegations of selective prosecution are insufficient in themselves to meet the bad faith exception. See Gwynedd Properties v. Lower Gwynedd Township, 1991 U.S. Dist. LEXIS 18303, 1991 WL 270004 (E.D. Pa. Dec. 12, 1991); Palmarozza v. Platt, 1986 WL 2438 (E.D. Pa. Feb. 19, 1986). Rather, plaintiffs' claim of bad faith must be supported with specific allegations from which we may infer that defendants knowingly instituted meritless prosecutions against the denturists and frivolous disciplinary proceedings against the dentists solely to discourage exercise of protected rights. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 487-89, 85 S. Ct. 1116, 1121-22, 14 L. Ed. 2d 22 (1965) (state initiated second prosecution even after a state court held that all evidence was seized illegally and quashed the arrest warrants as not based on probable cause); Krahm v. Graham, 461 F.2d 703, 705 (9th Cir. 1972) (state conducted eleven illegal searches and instituted over one hundred unsuccessful prosecutions for violation of Arizona's anti-obscenity statute, with each plaintiff facing between 10 and 20 charges); Bays v. Edgar, 1988 U.S. Dist. LEXIS 1196, 1988 WL 13639 (N.D. Ill. Feb. 17, 1988) (bad faith exception met where plaintiff alleges that, in addition to selective prosecution motivated by plaintiffs' refusal to contribute to a political campaign, defendants filed meritless criminal charges without probable cause, engaged in false publicity against plaintiffs).
In the instant case, defendants have successfully prosecuted plaintiff Anthony Carbone for violations of the Illinois Dental Practice Act. Further, plaintiff denturists have all but conceded that their actions in fitting dentures to the mouths of patients was in violation of the Act. Likewise, we infer from plaintiffs' complaint that some of the plaintiff dentists have been disciplined pursuant to administrative hearings before the DPR. The facts as alleged in plaintiffs complaint do not indicate that the "'state officials are using or threatening to use prosecutions, regardless of their outcome, as instrumentalities for the [exercise of protected first amendment activity].'" Collins, 807 F.2d at 101 (citing Sheridan v. Garrison, 415 F.2d 699, 706 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S. Ct. 685, 24 L. Ed. 2d 685 (1970)) (emphasis in Sheridan). To the contrary, based on the allegations set forth in plaintiffs' complaint, the more likely explanation for defendants' decision to prosecute is the undeniable fact that plaintiffs have flaunted the law of Illinois. Accordingly, plaintiffs may not rely upon the bad faith exception to Younger.
Without exception, Younger certainly requires this court to abstain on Counts I and II of plaintiffs' complaint, which seek declaratory and injunctive relief. Count III, however, requests damages for the alleged misconduct set forth in Count I. Whether the Younger doctrine requires this court to abstain in the face of such a damage claim is a question yet to be addressed by the United States Supreme Court. See Deakins v. Monaghan, 484 U.S. 193, 202, 108 S. Ct. 523, 529, 98 L. Ed. 2d 529 (1988). However, a plurality of the Circuit Courts, including the Seventh Circuit, have held that the Younger doctrine applies to damage claims like those brought by the plaintiffs in this case. See Feaster v. Miksch, 846 F.2d 21, 24 (6th Cir.), cert. denied, 488 U.S. 857, 109 S. Ct. 148, 102 L. Ed. 2d 120 (1988); Williams v. Hepting, 844 F.2d 138, 144 (3d Cir.), cert denied, 488 U.S. 851, 109 S. Ct. 135, 102 L. Ed. 2d 107 (1988); Jacobson v. Village of Northbrook Mun. Corp., 824 F.2d 567, 569 (7th Cir. 1987); Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986); Doby v. Strength 758 F.2d 1405, 1406 (11th Cir. 1985); Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir. 1981); Landrigan v. Warwick, 628 F.2d 736, 743 (1st Cir. 1980); McCurry v. Allen, 606 F.2d 795, 799 (8th Cir. 1979), rev'd on other grounds, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980); see also Jones v. Takaki, No. 92-7076 (N.D. Ill. Feb. 17, 1993); Yates v. Mannina, No. 89-3969 (N.D. Ill. Aug. 25, 1989); Smith v. City of Chicago, No. 88-3755 (N.D. Ill. Apr. 4, 1989). As noted by Justice White, "the reasons for such an approach are obvious." Deakins, 484 U.S. at 208, 108 S. Ct. at 532 (White, J., concurring). Most significantly, given the doctrine of res judicata, the basic policy against federal interference with pending state criminal prosecutions generally will be frustrated as much by a damages award as it would be by either declaratory relief or an injunction. Id. at 208-09, 108 S. Ct. at 533 (White, J., concurring). In that adjudication on Count III of plaintiffs' complaint would be as disruptive of the ongoing state proceedings as resolution of Counts I and II, we will abstain on Count III as well.
We observe that the statute of limitations applicable to Counts I-III will not be tolled, as it is doubtful that any of the plaintiffs have been in continuous custody since the underlying events leading to state prosecution. Under such circumstances, the court lacks discretion to merely dismiss the claims without prejudice, as such action does not guarantee that the applicable limitations period will not expire. Deakins, 484 U.S. at 202, 108 S. Ct. at 529. However, to ensure that plaintiffs' claims are not inadvertently neglected in this court's growing docket and as an alternative to either an unconditional dismissal or stay of plaintiffs' claims, we dismiss plaintiffs' complaint without prejudice and with leave to reinstate upon the conclusion of the underlying criminal and administrative proceedings.
For the reasons set forth above, we grant defendants' motions and dismiss plaintiffs' complaint without prejudice and with leave to reinstate upon conclusion of the underlying criminal and administrative proceedings. It is so ordered.
MARVIN E. ASPEN
United States District Judge