                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 3, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 JOSEPH GOINGS,

              Plaintiff-Appellant,

 v.                                                      No. 13-3309
                                            (D.C. No. 6:13-CV-01107-RDR-KMH)
 SUMNER COUNTY DISTRICT                                   (D. Kan.)
 ATTORNEY’S OFFICE; KERWIN
 SPENCER,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.


      Joseph Goings, proceeding pro se and in forma pauperis (“IFP”), appeals

from the district court’s dismissal of his civil-rights complaint. Our appellate

jurisdiction is conferred by 28 U.S.C. § 1291, and we affirm the district court’s

dismissal of Mr. Goings’s complaint on the ground of abstention under Younger v.


      *
             After examining the briefs and appellate record, this panel has
decided 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      This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Harris, 401 U.S. 37 (1971) (“Younger abstention”). However, because we also

conclude that the district court improperly addressed the merits of Mr. Goings’s

claims, we remand the case for the court to amend the judgment to expressly

reflect a dismissal without prejudice.

                                         I

      In January 2013, a criminal complaint charging Mr. Goings with one count

of harassment by telecommunications device, in violation of Kan. Stat. Ann. § 21-

6206(c), and one count of intimidation of a witness, in violation of Kan. Stat.

Ann. § 21-5909(a), was filed in the District Court of Sumner County, Kansas.

Mr. Goings received a summons notifying him of these charges on or about

February 1, 2013. He subsequently filed a “Motion and Order for Discovery and

Production of Records,” which purported to combine a request for the production

of materials from the Sumner County Attorney with a court order granting that

request. Mr. Goings claims to have personally delivered this document to the

county attorney’s office on February 6, 2013.

      In a manner unclear from the record, the county district judge inadvertently

signed the “Motion and Order” and caused the document to be filed with the

county district court clerk’s office. On March 5, 2013, the county district court

sua sponte issued an order setting aside the “Motion and Order,” explaining that

the document had been improperly submitted, signed, and filed. The county court

also scheduled a hearing for March 14, 2013 on Mr. Goings’s discovery motion.

                                         2
      One day prior to the hearing, Mr. Goings caused a subpoena duces tecum to

be served on Officer Jared Hedge of the City of Wellington Police Department

(“WPD”). 1 The subpoena directed Officer Hedge to appear at the March 14

discovery hearing and to bring “[a]ny and all . . . evidence” regarding Mr.

Goings’s criminal case. R. at 86 (Subpoena, returned Mar. 13, 2013). Officer

Hedge did not appear at the hearing, and Mr. Goings’s discovery motion was not

granted during that proceeding.

      On March 18, 2013—while his state criminal case was pending—Mr.

Goings filed a lawsuit in the United States District Court for the District of

Kansas, bringing two claims pursuant to 42 U.S.C. § 1983. Mr. Goings named as

defendants Kerwin Spencer, the Sumner County Attorney (in his official and

individual capacities), and the “Sumner County District Attorney’s Office.” 2

Defendants moved to dismiss on May 20, 2013, and a full round of briefing

ensued. Before the district court resolved Defendants’ motion, Mr. Goings sought

permission to amend his complaint, which was granted. In its ruling on the

      1
              According to Mr. Goings, this was the second subpoena he attempted
to lodge with the WPD. The first was intended for Detective Dan Thompson; its
“return on service” section contains the notation “Detective Thompson out of
town.” R. at 85 (Subpoena, returned Feb. 15, 2013) (capitalization altered). Mr.
Goings insists that when he contacted the WPD with questions regarding the
Thompson subpoena, he was told the WPD “was not going to honor any subpoena
because . . . [the Sumner County Attorney] had directed them not to.” Id. at 39
(Am. Compl., filed Oct. 3, 2013).
      2
             “Strictly speaking, . . . crimes within the county are prosecuted by
the county attorney,” Aplee. Br. at 7 n.6 (citation omitted)—i.e., Mr. Spencer.

                                          3
motion to amend, the court accepted Mr. Goings’s representation that “he [was]

not seeking a ruling to specifically affect the state court proceeding” still pending

in the Sumner County court, Dist. Ct. Doc. 18, at 3 (Mem. & Order on Mot. to

Amend, filed Sept. 25, 2013), and determined that Defendants’ motion to dismiss

was moot. Mr. Goings filed his amended complaint on October 3, 2013.

      As amended, Mr. Goings’s complaint presented two § 1983 claims. The

first claim was directed at Mr. Spencer, alleging that he violated Mr. Goings’s

Fourteenth Amendment right to due process by (1) promulgating and following

discovery procedures inconsistent with Kansas law, and (2) telling WPD officers

that they were not obligated to honor Mr. Goings’s subpoenas. The second claim

was directed at the “Sumner County District Attorney’s Office” for its alleged

failure to adequately train, supervise, and discipline county employees “regarding

the practice of discovery procedures.” R. at 48. Mr. Goings sought declaratory

and injunctive relief. He also sought both compensatory and punitive monetary

damages, explaining that he was unable to take a job “waiting for him in

Pittsburg, Kansas . . . [and] at the same time be effectively involved in his own

defense in the criminal case 13 CR 25” in the county court. Id. at 51.

      Defendants once again filed a motion to dismiss on November 6, 2013,

asserting two grounds for relief. First, Defendants argued that Mr. Goings’s

complaint did not pass muster under Federal Rule of Civil Procedure

12(b)(6)—i.e., it failed to state a claim for relief—because (a) the “Sumner

                                          4
County District Attorney’s Office” lacked capacity to be sued, and (b) the claim

against Mr. Spencer was barred by absolute prosecutorial immunity. And,

second, Defendants urged that dismissal was mandatory under Younger

abstention.

      On December 9, 2013, the district court granted Defendants’ motion,

stating that there was “no serious argument that the instant action should not be

dismissed.” Id. at 158 (Mem. & Order on Mot. to Dismiss, filed Dec. 9, 2013).

The court first opined that the “Sumner County District Attorney’s Office” was

not amenable to suit and that absolute prosecutorial immunity shielded all of Mr.

Spencer’s alleged conduct pertaining to the discovery procedures and processes in

Mr. Goings’s criminal case. Next, the court changed course and reasoned that

“some comment must also be made concerning Younger abstention.” Id. at 163.

It found that all of the prerequisites for invoking Younger were satisfied:

              First, the pleadings indicate that the plaintiff’s criminal case is
              ongoing. Second, the state court in which the criminal
              prosecution is proceeding is an adequate forum to hear plaintiff’s
              complaints about discovery and the issuance of subpoenas.
              Finally, the State of Kansas’ prosecution of plaintiff for violation
              of its criminal laws involves important state interests.

Id. at 164. In light of Kansas’s important interest in enforcing its criminal laws,

the district court declared that the “proper exercise of [its] discretion” would be to

abstain under Younger. Id. at 165. The court expressly stated that it was

dismissing Mr. Goings’s complaint for failure to state a claim and “based upon


                                            5
the application of Younger abstention.” Id. The district court did not specify

whether its dismissal of Mr. Goings’s complaint was with or without prejudice.

                                          II

                                          A

      We note at the outset that because Mr. Goings’s filings in the district court

and this court were prepared pro se, they are “entitled to a solicitous

construction.” Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

His complaint is therefore subject to “less stringent standards than formal

pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (internal quotation marks omitted), but this dispensation does not obviate

“the burden of alleging sufficient facts on which a recognized legal claim could

be based,” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      Ordinarily, we would review the district court’s Rule 12(b)(6) dismissal of

Mr. Goings’s complaint de novo, Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir.

2010), “accept[ing] as true all well-pleaded facts . . . and view[ing] those facts in

the light most favorable to the nonmoving party,” Moya v. Schollenbarger, 465

F.3d 444, 455 (10th Cir. 2006) (internal quotation marks omitted). However, for

reasons that we explicate below, it was improper for the district court to rule on

the merits of Mr. Goings’s complaint under Rule 12(b)(6), where the conditions

were satisfied for application of Younger abstention. Therefore, in conducting

our review of the district court’s dismissal, our focus is only on the propriety of

                                          6
the court’s Younger analysis. Finding that analysis sound and proper, we have no

need to determine whether the district court’s judgment could be upheld on the

alternative ground of Rule 12(b)(6). Like a 12(b)(6) dismissal, however, we

review a district court’s decision to abstain under Younger de novo. See

Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 923 (10th Cir. 2008); J.B. ex rel.

Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999).

                                         B

      Federal courts have a “virtually unflagging obligation” to exercise the

jurisdiction bestowed upon them. Colo. River Water Conservation Dist. v. United

States, 424 U.S. 800, 817 (1976). But this obligation is cabined in our federal

system, for “Congress has . . . manifested a desire to permit state courts to try

state cases free from interference by federal courts.” Younger, 401 U.S. at 43;

accord Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997). Consequently, in

applying Younger, we have said that, apart from “the most exceptional

circumstances,” 3 we “must dismiss suits for declaratory or injunctive relief against

pending state criminal proceedings.” Phelps v. Hamilton, 122 F.3d 885, 889

(10th Cir. 1997) (emphasis added); see Seneca-Cayuga Tribe of Okla. v. Okla. ex

rel. Thompson, 874 F.2d 709, 711 (10th Cir. 1989). We effect such dismissals

      3
              “Only in cases of proven harassment or prosecutions undertaken by
state officials in bad faith without hope of obtaining a valid conviction
and . . . where irreparable injury can be shown is federal injunctive relief against
pending state prosecutions appropriate.” Perez v. Ledesma, 401 U.S. 82, 85
(1971).

                                          7
with an eye toward “comity considerations,” Yellowbear, 525 F.3d at 923, and out

of “respect [for] state functions and the independent operation of state legal

systems,” Phelps, 122 F.3d at 889.

       In practice, Younger abstention is warranted when the following conditions

are satisfied:

                 First, there must be ongoing state criminal, civil, or
                 administrative proceedings. Second, the state court must offer an
                 adequate forum to hear the federal plaintiff’s claims from the
                 federal lawsuit. Third, the state proceeding must involve
                 important state interests, matters which traditionally look to state
                 law for their resolution or implicate separately articulated state
                 policies.

Taylor, 126 F.3d at 1297; accord Chapman v. Oklahoma, 472 F.3d 747, 749 (10th

Cir. 2006). Once these requirements have been met, “Younger abstention dictates

that federal courts not interfere.” Amanatullah v. Colo. Bd. of Med. Exam’rs, 187

F.3d 1160, 1163 (10th Cir. 1999) (emphasis added) (internal quotation marks

omitted). We have adhered strictly to this rule, observing that Younger abstention

is “mandatory,” Walck v. Edmondson, 472 F.3d 1227, 1233 (10th Cir. 2007), and

“non-discretionary,” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319

F.3d 1211, 1215 (10th Cir. 2003).

       Bearing the foregoing standards in mind, we harbor no doubt that the

district court correctly found all three Younger prerequisites satisfied. To begin

with, Mr. Goings’s state criminal prosecution—initiated in January 2013—was

unquestionably “ongoing” when he filed his complaint in federal court in March

                                               8
2013 (and the amended version of the same in October of that year). See

Webster’s Third New International Dictionary 1576 (2002) (defining “ongoing”

to mean, inter alia, “actually in process”). Mr. Goings’s arguments on appeal

cast no doubt on the district court’s ruling in this regard. Specifically, his

argument that Younger abstention is inappropriate because his Kansas criminal

case “is no longer on the state court docket as of January 2, 2014,” Aplt. Opening

Br. at 7; see also Aplee. Br. at 20 (noting that Mr. Goings was convicted of the

charges against him on that date), is unavailing. The district court properly found

that, as presented to it, Mr. Goings’s case involved pending state criminal

proceedings. See Amanatullah, 187 F.3d at 1164 (“At the time that the district

court abstained and dismissed [the] federal complaint, there had been no hearing

before an administrative law judge. We consider [Plaintiff’s] claims as of that

time.”); see also Chapman v. Barcus, 372 F. App’x 899, 902 (10th Cir. 2010)

(finding Younger’s first condition satisfied when “[t]he state custody matter was

ongoing at the time [Plaintiff] filed this action” (emphasis added)); Lambeth v.

Miller, 363 F. App’x 565, 568 (10th Cir. 2010) (same result when “[t]he [Kansas]

abatement proceeding was ongoing at the time plaintiff filed this action”

(emphasis added)). Accordingly, Younger’s first condition is satisfied.

      Next, we note that Mr. Goings was obligated to “clearly show that [he]

could not have raised [his] claims during the [state court] proceedings,” Valdez,

186 F.3d at 1292, in order to defeat Younger’s second requirement. The focus for

                                           9
this prong of Younger is “whether [the] claims could have been raised in the

pending state proceedings.” Id. (quoting Moore v. Sims, 442 U.S. 415, 425

(1979)) (internal quotation marks omitted). Mr. Goings has never lodged any

cognizable argument related to this issue; in other words, he has not even

attempted to explain how the district court erred in finding this second

requirement satisfied. In any event, it is beyond cavil that a state court is an

adequate forum for the resolution of challenges to distinctly state prosecutorial or

court procedures or processes, which are the kind of procedures or processes that

were directly at issue in Mr. Goings’s claims. Cf. Chapman, 472 F.3d at 749

(noting the same regarding divorce-court proceedings).

      Finally, Younger’s third condition is unmistakably satisfied. The State of

Kansas has a vital interest in prosecuting individuals believed to have committed

crimes against others persons—including, as is relevant here, individuals charged

with harassment and witness intimidation. See, e.g., Aid for Women v. Foulston,

441 F.3d 1101, 1119 (10th Cir. 2006) (highlighting states’ “strong interest” in

enforcing their criminal laws and other statutes). We would be hard-pressed to

disregard the district court’s reasoned conclusion that the state proceeding here

implicated important state interests vis-à-vis the prevention of crime, see Seneca-

Cayuga Tribe, 874 F.2d at 711–12, and we do not do so.

      Because all three Younger requirements are present in Mr. Goings’s

case—and because Mr. Goings has not met his “heavy burden to overcome the bar

                                          10
of Younger abstention,” Phelps, 122 F.3d at 889 (internal quotation marks

omitted), by plausibly establishing through his factual averments “the most

exceptional circumstances,” id.—we are satisfied that Younger abstention was

justified. See Weitzel v. Div. of Occupational & Prof’l Licensing, 240 F.3d 871,

877–78 (10th Cir. 2001).

                                          C

                                          1

      After reaching its conclusion to abstain under Younger—which our de novo

analysis has determined to be correct—the district court should not have gone

further and ruled on the merits of Defendants’ 12(b)(6) challenge. We have held

that this additional inquiry is improper. See D.L. v. Unified Sch. Dist. No. 497,

392 F.3d 1223, 1232 (10th Cir. 2004) (“[T]o the extent that Plaintiffs raised

[certain claims] below, Younger deprived the district court of jurisdiction [4] to

resolve it.”); accord Caldwell v. Camp, 594 F.2d 705, 708 (8th Cir. 1979) (“Since

we hold that Younger requires the dismissal of Caldwell’s complaint, we need not

      4
              We have recently clarified that a dismissal based on Younger
abstention is not a dismissal “for lack of jurisdiction” within the meaning of the
federal rules. See D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., 705 F.3d
1223, 1230 n.8 (10th Cir.) (“[The] district court suggested that the Younger
doctrine is jurisdictional. This is not precisely correct. Younger is a doctrine of
abstention . . . under which a District Court may decline to exercise . . . its
jurisdiction. This differs from a case in which the district court is barred at the
outset from exercising its jurisdiction.” (citations omitted) (internal quotation
marks omitted)), cert. denied, --- U.S. ----, 133 S. Ct. 2831 (2013). For our
purposes—formal semantics aside—the salient point is that Younger required the
district court not to rule on the merits of Mr. Goings’s complaint.

                                          11
reach the alternate grounds for dismissal which were cited by the District

Court.”). Indeed, as we held in Taylor, a federal court’s “conclusion that Younger

abstention applies ends the matter.” 126 F.3d at 1298 (emphasis added). We

cannot harmonize the district court’s duty to “abstain”—i.e., “refrain from doing

something,” Black’s Law Dictionary 9 (9th ed. 2009)—regarding Mr. Goings’s

claims with its decision to contemporaneously tackle the merits and determine

that the complaint failed to state a legally actionable claim. By undertaking this

merits analysis, in effect, the district court failed to abide by the time-honored

principle of showing “proper respect for state functions.” Younger, 401 U.S. at

44.

                                           2

      As noted, the district court failed to specify whether its dismissal of Mr.

Goings’s complaint was with or without prejudice. Under our precedent,

Younger-abstention dismissals have been treated as roughly akin to jurisdictional

dismissals and, accordingly, have been considered to be without prejudice. See

Morrow v. Winslow, 94 F.3d 1386, 1398 (10th Cir. 1996) (vacating merits-based

ruling and remanding with instructions to abstain and enter a without-prejudice

dismissal); accord Caldwell, 594 F.2d at 708 (“Although we agree that Younger

requires the dismissal of Caldwell’s complaint, we reverse the order of the

District Court insofar as it appears to dismiss Caldwell’s complaint with

prejudice.”); cf. D.A. Osguthorpe Family P’ship, 705 F.3d at 1230 n.8 (noting that

                                          12
it is “not precisely correct” to describe the Younger doctrine as jurisdictional).

Given our conclusion that Younger abstention was appropriate here and that it

should have been the sole ground for dismissal, we believe that the dismissal here

should have been without prejudice.

      However, the district court’s silence regarding the with- or without-

prejudice nature of its dismissal and its purported dismissal on the additional

ground of failure to state a claim under Rule 12(b)(6) may engender confusion

and suggest the obverse (i.e., that the dismissal was entered with prejudice). In

this regard, Federal Rule of Civil Procedure 41(b), which deals with involuntary

dismissals, provides in pertinent part the following: “Unless the [court in its]

dismissal order states otherwise, . . . any dismissal . . . except one for lack of

jurisdiction, improper venue, or failure to join a party under Rule 19—operates as

an adjudication on the merits.” And, none of the exceptions listed in Rule 41(b)

technically apply to this lawsuit.

      Moreover, it is well-settled that a dismissal for failure to state a claim

under Rule 12(b)(6)—which speaks to the legal insufficiency of the claim at

issue—is an adjudication on the merits. See Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 399 n.3 (1981) (“The dismissal for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits.”

(internal quotation marks omitted)); McLean v. United States, 566 F.3d 391, 396

(4th Cir. 2009) (“Courts have held that, unless otherwise specified, a dismissal for

                                           13
failure to state a claim under Rule 12(b)(6) is presumed to be . . . a judgment on

the merits . . . .”); cf. Bell v. Hood, 327 U.S. 678, 682 (1946) (“If the court does

later exercise its jurisdiction to determine that the allegations in the complaint do

not state a ground for relief, then dismissal of the case would be on the merits,

not for want of jurisdiction.”). Furthermore, the Supreme Court has held that “an

‘adjudication upon the merits’ is the opposite of a ‘dismissal without prejudice.’”

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001); see Rollins

v. Wackenhut Servs., Inc., 703 F.3d 122, 131 (D.C. Cir. 2012) (“Adjudication on

the merits in this context [i.e., involuntary dismissal] means dismissal with

prejudice.”); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2373, 739–42 (3d ed. 2008) (“[B]ecause an involuntary dismissal is

an adjudication on the merits, it is, in the phrase commonly used by the federal

courts, ‘with prejudice.’”).

      Accordingly, lest the district court’s silence and its improper alternative

merits decision under Rule 12(b)(6) sow seeds of confusion and suggest a

dismissal with prejudice, we remand the case to the district court so that it may

amend the judgment to expressly note a dismissal of Mr. Goings’s action without

prejudice.

                                          III

      We AFFIRM the district court’s dismissal of Mr. Goings’s complaint and

REMAND the case to the court with instructions to amend its judgment to

                                          14
explicitly dismiss Mr. Goings’s lawsuit without prejudice.



                                             Entered for the Court




                                             JEROME A. HOLMES
                                             Circuit Judge




                                        15
