              Case: 16-12622    Date Filed: 05/30/2017   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-12622
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 4:16-cv-00172-RH-GRJ

WILLIE F. HALE,

                                                               Plaintiff-Appellant,

                                        versus

TENA M. PATE,
Commissioner,
JOHN B. DOYLE,
Investigator 87103,

                                                            Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                  (May 30, 2017)

Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Willie Hale, a Florida state prisoner proceeding pro se, appeals the district

court’s dismissal of his civil rights complaint against Tena Pate and John B. Doyle,
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pursuant to 42 U.S.C. § 1983, challenging his state conditional-release revocation

proceedings. In the complaint, Hale alleged that his Sixth Amendment right to

counsel and Fourteenth Amendment rights to due process and equal protection

were violated when his conditional release was revoked, for a violation of his

mandatory curfew, and he was returned to prison to serve time in excess of his

original sentence because of a forfeiture of gain-time.      The magistrate judge

recommended that the case be dismissed pursuant to the abstention doctrine found

in Younger v. Harris, 401 U.S. 37 (1971), and that it also be dismissed for failure

to state a claim pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.

§ 1915(e)(2)(B); after Hale filed his objections, the district court accepted and

adopted the magistrate judge’s report and recommendation (“R&R”) as its own and

dismissed the action under § 1915(e)(2)(B). On appeal, Hale appears to argue that:

(1) his Sixth Amendment rights were violated at the revocation hearing because

Pate refused to appoint counsel for his defense, and that because Pate had a

practice of denying assistance of counsel to similarly situated inmates, Pate and

Doyle are liable under supervisory liability and municipal liability, respectively;

and (2) the state court imposed an illegal sentence on him upon revoking his

conditional release. After thorough review, we vacate and remand so that the

district court can dismiss the action without prejudice based on Younger.




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      Whether to abstain under Younger is a threshold issue that may be resolved

even before jurisdiction. See Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005); see also Steel

Co. v. Citizens for a Better Environment, 523 U.S. 83, 100 n.3 (1998) (approving a

decision   resolving     Younger    abstention   before     addressing      subject-matter

jurisdiction). In addressing whether abstention is appropriate in a given case, we

review the district court’s decision to abstain for abuse of discretion. Boyes v.

Shell Oil Prod. Co., 199 F.3d 1260, 1265 (11th Cir. 2000). An error of law

constitutes an abuse of discretion. Major League Baseball v. Crist, 331 F.3d 1177,

1183 (11th Cir. 2003).

      Federal courts have a virtually unflagging obligation to exercise the

jurisdiction given to them. For Your Eyes Alone, Inc. v. City of Columbus, 281

F.3d 1209, 1215-16 (11th Cir. 2002). In Younger, the Supreme Court recognized

an exception, holding that federal courts should abstain from suits aimed at

restraining pending state prosecutions. Id. at 1216 (citing Younger, 401 U.S. at

41). Younger abstention applies only if the state proceedings: (1) are pending at

the time of the federal action; (2) implicate important state interests; and (3)

provide an adequate opportunity for raising federal constitutional questions.

Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982). As for the first factor, “[t]he date of filing of the federal complaint is the

relevant date for purposes of determining Younger’s applicability” because “the


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Supreme Court held that Younger applies if state court proceedings were pending

at the time of the filing of the federal complaint.” The News-Journal Corp. v.

Foxman, 939 F.2d 1499, 1510 (11th Cir. 1991) (quotation omitted). As for the

second factor, proceedings necessary for the vindication of important state policies

implicate a state’s interest. Middlesex, 457 U.S. at 432. Where vital state interests

are involved, a federal court should abstain unless state law clearly bars the

interposition of constitutional claims. Id.

      As for the third Younger factor, the plaintiff has the burden to show that the

state proceeding will not provide him an adequate remedy for his federal claim. 31

Foster Children v. Bush, 329 F.3d 1255, 1279 (11th Cir. 2003). We assume that

state procedures will afford an adequate remedy, in the absence of unambiguous

authority to the contrary.     Id.   A plaintiff has an adequate remedy for his

constitutional claim, for purposes of Younger abstention, if he can raise his

constitutional claim during the state court’s review of an administrative

proceeding. Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.

619, 629 (1986). Dismissals pursuant to the Younger abstention doctrine are

without prejudice. See Old Republic Union Ins. Co. v. Tillis Trucking Co., 124

F.3d 1258, 1264 (11th Cir. 1997).

      Documents attached to pleadings are part of the pleading. Fed. R. Civ. P.

10(c). We consider facts derived from documents attached to pleadings as part of


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the plaintiff’s factual averments. F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 63

(11th Cir. 2013). Unless a plaintiff has moved to supplement the record, we will

not consider evidence that does not appear in the district court’s record, absent

extraordinary circumstances. Lightbourne v. Dugger, 829 F.2d 1012, 1017 n.7

(11th Cir. 1987).

       Here, the district court did not abuse its discretion in dismissing Hale’s

complaint -- including all of his Sixth Amendment and Fourteenth Amendment

claims -- pursuant to the Younger abstention doctrine. For starters, the record

reveals that Hale’s state action was pending while he was pursuing this case in the

district court. As the record shows, the final order revoking Hale’s conditional

release had not yet been entered before the magistrate judge made his

recommendation. Rather, Hale attached to his initial appellate brief the final order

revoking his conditional release, but it was dated before the district court entered

its judgment but after he filed his complaint. Notably, “Younger applies if state

court proceedings were pending at the time of the filing of the federal complaint.”

The News-Journal Corp., 939 F.2d at 1510 (emphasis added).1 Indeed, Hale did

not allege in his complaint that the revocation hearing had concluded. Because the




1
        In addition, because Hale did not move to supplement the district court record with the
final order, we need not consider this evidence. Dugger, 829 F.2d at 1017 n.7.


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revocation proceeding was not final at the time Hale filed his complaint in the

district court, Younger abstention still applies.

      As for the second Younger factor, Hale’s case clearly involved an important

state interest -- namely, Florida’s need to ensure that prisoners who have had their

incarceration terms reduced abide by the terms of their conditional supervised

release orders. Middlesex, 457 U.S. at 432. And as for the third factor, Hale has

not claimed that he would be unable to vindicate his claims that he is improperly

incarcerated or that he did not receive the counsel that he merited in a state court

forum. 31 Foster Children, 329 F.3d at 1279. Thus, on this record, the district

court did not abuse its discretion in abstaining under Younger.

      We recognize that it is not clear from the district court’s brief order that it

was abstaining pursuant to Younger.            In the R&R, the magistrate judge

recommended that “this case be DISMISSED pursuant to the Younger abstention

doctrine and pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim

upon which relief may be granted.” The district court’s order, in turn, said that

“[t]he report and recommendation is ACCEPTED and adopted as the court’s

opinion,” but then directed the clerk to enter judgment stating that “‘[t]he

complaint is dismissed under 28 U.S.C. § 1915(e)(2)(B).’” It did not expressly

mention whether the case was to be dismissed under Younger. Nevertheless,

because the district court clearly provided that it was accepting and adopting the


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R&R as its own, see MDS (Canada) Inc. v. Rad Source Techs., Inc., 720 F.3d 833,

853 n.8 (11th Cir. 2013) (construing a district court’s opinion “to determine its

most plausible meaning”), we construe the district court’s opinion as having

approved the reasoning on both grounds recommended by the magistrate judge, but

as having made a scrivener’s error in failing to list Younger as the superseding

ground for dismissal. Because a complaint dismissed pursuant to Younger is

without prejudice, see Old Republic, 124 F.3d at 1264, we are obliged to vacate the

district court’s order and remand the case with directions that the district court

dismiss without prejudice Hale’s action on Younger abstention grounds.

      VACATED AND REMANDED.




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