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

                           FOR THE TENTH CIRCUIT                     September 11, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MICHAEL D. LEATHERWOOD,

             Plaintiff-Appellant,

v.                                                        No. 13-6073
                                                   (D.C. No. 5:12-CV-00251-C)
JOHN WHETSEL, Sheriff; DAVID                              (W.D. Okla.)
PRATER, District Attorney; GAYLAND
GIEGER, Assistant DA; DANA
BASEHORE, Employee OCDC; JASON
BASS, Employee OK Co Sheriff;
DENISE WELKER, Employee DOC,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.


      Michael D. Leatherwood, an Oklahoma prisoner proceeding pro se, appeals the

district court’s order dismissing without prejudice his complaint brought under

42 U.S.C. § 1983. He claimed that his constitutional rights were violated when jail

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
officials opened his non-legal, non-privileged mail and delivered it to the office of

the Oklahoma County District Attorney. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

   I.      BACKGROUND

        In 2009, Mr. Leatherwood entered guilty pleas to six counts of rape. He was

sentenced to 20 years on each count to run concurrently. All but the first 90 days

were suspended. As a condition of his probation, he could not “date, socialize, or

enter into a romantic or sexual relationship with any person who has children under

the age of eighteen (18) years.” R. Vol. 1 at 114.

        In January 2010, the suspended sentences were partially revoked and

Mr. Leatherwood was ordered to serve five years on each sentence, while the

remaining 15 years continued to be suspended. At that point, Mr. Leatherwood was

incarcerated at the Oklahoma County Detention Center awaiting transfer to the

Oklahoma Department of Corrections. He claims that jail officials improperly seized

and copied his personal mail and delivered the copies to defendant Geiger, an

assistant district attorney. He maintains that while he was incarcerated at the

detention center, the conditions of his release were not applicable. Therefore, he

argues, defendants were not authorized to monitor his mail to determine if he was

complying with the conditions of his probation, in particular, the prohibition against

socializing with anyone who had children under 18 years of age. But based on his

correspondence from the detention center with a woman who had children under the


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age of 18, in August 2010, the remainder of Mr. Leatherwood’s suspended sentences

was revoked.

      Mr. Leatherwood appealed the revocation to the Oklahoma Court of Criminal

Appeals, which affirmed on January 13, 2012. Next, Mr. Underwood filed a

post-conviction motion in state court. While that action was pending, he filed the

underlying federal case asserting violations of his rights under the First, Fourth, and

Fourteenth Amendments. Then he filed a second state post-conviction motion. The

state district court denied both post-conviction motions on June 18, 2012.

Mr. Leatherwood’s appeal from the denial of his post-conviction motions was

pending at the time the district court dismissed the federal complaint.

      In dismissing the complaint, the federal district court adopted the

recommendation of a magistrate judge to abstain from hearing Mr. Leatherwood’s

claims pursuant to the abstention doctrine established in Younger v. Harris, 401 U.S.

37 (1971), because state-court proceedings were pending. In an alternative ruling,

the court held that Mr. Leatherwood’s constitutional claims brought under § 1983

must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)

(prohibiting an individual from recovering damages in a § 1983 action for an

allegedly unlawful confinement where there has not been a favorable termination of

the criminal action on appeal or in a collateral action). Accordingly, the district court

dismissed the complaint without prejudice and Mr. Leatherwood appeals. We




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conclude that the district court properly abstained under Younger, so we need not

review the court’s alternative ruling under Heck.

    II.      DISCUSSION

          “We review de novo the district court’s abstention decision.” Walck v.

Edmondson, 472 F.3d 1227, 1232 (10th Cir. 2007). Mr. Leatherwood is proceeding

pro se, so we liberally construe his pleadings. See Knox v. Bland, 632 F.3d 1290,

1292 (10th Cir. 2011).

          Absent extraordinary circumstances, abstention is mandatory if the following

three circumstances are present:

          (1) there is an ongoing state criminal, civil, or administrative
          proceeding, (2) the state court provides an adequate forum to hear the
          claims raised in the federal complaint, and (3) the state proceedings
          involve important state interests, matters which traditionally look to
          state law for their resolution or implicate separately articulated state
          policies.

Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006) (internal quotation marks

omitted). Mr. Leatherwood concedes the first factor and makes no appellate

argument concerning the third. He contends that the second factor is not met because

he did not, and now cannot, bring in state court his constitutional claims relating to

his mail.1



1
       Mr. Leatherwood does not claim that unusual circumstances render the
abstention doctrine inapplicable. Cf. Walck, 472 F.3d at 1233-34 (stating risk of
irreparable injury by “a threatened state prosecution in violation of the Double
Jeopardy Clause” warranted federal intervention).


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       Mr. Leatherwood asserts that because he did not include his federal claims

concerning his mail in the state court appeals or post-conviction motions, and

because those claims would now be deemed waived, the state court does not provide

an adequate forum. But Mr. Leatherwood does not argue that he was foreclosed from

including his claims about his mail in his initial filings to the state courts.

       Generally, a plaintiff has an adequate opportunity to raise federal claims in

state court “unless state law clearly bars the interposition of the [federal statutory

and] constitutional claims.” Moore v. Sims, 442 U.S. 415, 425-26 (1979).

Mr. Leatherwood did not even attempt to raise his federal constitutional claims

presented here in the state proceedings. Abstention contemplates that a litigant

should first seek relief in the state courts, “unless it plainly appears that this course

would not afford adequate protection.” Middlesex Cnty. Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 435 (1982) (internal quotation marks omitted).

Moreover, “when a litigant has not attempted to present his federal claims in related

state-court proceedings, a federal court should assume that state procedures will

afford an adequate remedy, in the absence of unambiguous authority to the contrary.”

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Mr. Leatherwood has not

explained why he could not have presented his constitutional claims about his mail at

his August 2010 revocation hearing or in his post-conviction motion based on the

August 2010 revocation. Thus, he has failed to meet his burden “to show that state

procedural law barred presentation of [his] claims.” Id. at 14. Accordingly, we


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conclude that the district court correctly abstained under Younger from hearing

Mr. Leatherwood’s claims.

   III.      CONCLUSION

          The judgment of the district court is affirmed.


                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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