                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                       December 20, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ROBERT ALAN MADDEN,

      Plaintiff - Appellant,
                                                             No. 16-6226
v.                                                    (D.C. No. 5:16-CV-00566-F)
                                                             (W.D. Okla.)
CLEVELAND COUNTY; INOVATIVE
PLUMBING DESIGN; ANDY AND
SONS SERVICES; STATE OF
OKLAHOMA; JUDGE STICE,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
      _________________________________

       Plaintiff Robert Alan Madden is a pretrial detainee at the Cleveland County

Detention Center in Norman, Oklahoma. Proceeding pro se and in forma pauperis, he

filed suit in the United States District Court for the Western District of Oklahoma against

several defendants under 42 U.S.C. § 1983. The district court dismissed the action on

various grounds, including failure to exhaust state remedies, abstention, absolute


*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
immunity, and failure to state a claim upon which relief may be granted. Plaintiff

appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

       We liberally review Plaintiff’s unpolished pro se complaint. See Haines v.

Kerner, 404 U.S. 519, 520 (1972). It appears to raise the following claims: To begin

with, he complains that defendants “Inovation Plumbing Design” and “Andy and Sons

Servies” denied him benefits in his previous employment. Aplt. App. at 9, 12. The

district court dismissed these claims with prejudice for failure to state a claim upon which

relief may be granted because the defendants were not acting under color of state law.

Plaintiff does not challenge these dismissals on appeal.

       The complaint also raises claims against the State of Oklahoma, the Cleveland

County district attorney, and state district court Judge Stice arising from Plaintiff’s

criminal prosecution in state court.1 It alleges that Plaintiff’s “motion to discover” was

not granted, Aplt. App. at 8, and that he had “not been brought before the court,” id. at

11. It requests that the federal court “have all case’s thrown out” and award him $1

million in damages. Id. at 10. Plaintiff appeals the dismissal of these claims. But he

does not address the district court’s rulings. He merely reiterates his contention that “I

filed legel motion that have not been answered legally” and “My consistutional rights

have been violated[.] I ask for a motion to discover that was not granted to me in

person.” Aplt. Br. at 3.


1
  Although Cleveland County is named in the caption of the complaint, it is not clear
from the complaint that Plaintiff is suing the county as a separate entity. In any event, if
he is, the complaint makes no allegations against the county and thus fails to state a claim
upon which relief may be granted.

                                              2
       The dismissal can be readily affirmed. To the extent that Plaintiff is seeking

damages, the prosecutor and the judge are both entitled to absolute immunity, see

Cleavinger v. Saxner, 474 U.S. 193, 199‒200 (1985) (absolute immunity for judges);

Imbler v. Pachtman, 424 U.S. 409, 430‒31 (1976) (absolute immunity for prosecutors),

and the state is entitled to sovereign immunity under the Eleventh Amendment, see

Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir. 1998); see also Will v.

Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (State is not a “person” under

§ 1983). To the extent that Plaintiff seeks injunctive relief, the federal court is barred

from interfering with an ongoing state criminal prosecution absent extraordinary

circumstances not alleged here. See Younger v. Harris, 401 U.S. 37, 56 (1971). And

insofar as Plaintiff seeks habeas relief under 28 U.S.C. § 2241 from his prosecution, he is

barred for failure to first exhaust available state remedies. See Garza v. Davis, 596 F.3d

1198, 1203 (10th Cir. 2010) (“The exhaustion of available administrative remedies is a

prerequisite for § 2241 habeas relief.”); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.

2000) (“A habeas petitioner is generally required to exhaust state remedies whether his

action is brought under § 2241 or § 2254.”). The burden of proving exhaustion rests with

the prisoner, see Olson v. McKune, 9 F.3d 95 (10th Cir. 1993), and Plaintiff has failed to

show that he has pursued available remedies in state court.




                                              3
       We AFFIRM the district court’s denial of relief and DISMISS this appeal. We

also DENY Plaintiff’s motion to proceed in forma pauperis on appeal. Appellant shall

continue to make partial fee payments to the district court until the entire appellate fee is

paid in full.

                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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