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

                                      TENTH CIRCUIT                           February 9, 2018

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 WALTER HAROLD MARTIN-EL, a/k/a
 Walter Harold Martin,

                  Plaintiff - Appellant,
                                                                No. 17-1293
 v.                                                    (D.C. No. 1:17-CV-00488-LTB)
                                                                  (D. Colo.)
 BO A. ZEERIP; DANIEL P.
 RUBINSTEIN; BRANDON LUDWIG;
 JULIE STOGSDILL; MEGHAN
 WOODLAND; KATHERINE
 STEWART; KEVIN IMBRIACO,

                  Defendants - Appellees.


                                ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


          After examining the briefs and the 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). This case is therefore ordered submitted

without oral argument.

          Plaintiff Walter Harold Martin-El, a state prisoner proceeding pro se, filed this 42 U.S.C.

§ 1983 complaint to challenge the means through which certain evidence giving rise to state

      *
        This order is not binding precedent, except under the doctrines of law of the case,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.
criminal charges was obtained—namely, a recording taken by Plaintiff’s spouse involving

Plaintiff and child pornography. Plaintiff alleged that the recording violated 1) Title III of the

Omnibus Crime Control and Safe Streets Act (specifically, the Federal Wiretap Act, 18 U.S.C.

§§ 2510-2520); 2) 18 U.S.C. § 242; and 3) the Fourth, Fifth, Ninth, Tenth, and Fourteenth

Amendments. Plaintiff sought money damages and a declaratory judgment that his

constitutional rights were violated. After instructing Plaintiff to submit several clarifying

filings, including an Amended Prisoner Complaint, the district court dismissed Plaintiff’s action

without prejudice for lack of jurisdiction under the Younger abstention doctrine. This appeal

followed.

       On appeal, Plaintiff argues that the district court erred in holding that it lacked

jurisdiction to hear his claims and asserts that “the State’s charges which were directly related to

this claim have been dismissed.” (Plaintiff’s Br. at 6.) Plaintiff does not cite any factual

evidence or documentation to support this position. Indeed, a search of the Colorado Judicial

Branch website shows that Plaintiff’s criminal jury trial in related state case number

D392016CR5009 is currently scheduled for April 18, 2018.

       Thus, we agree with the district court that federal court jurisdiction is not proper under

Younger v. Harris, 401 U.S. 37 (1971). Younger abstention is a jurisdictional determination,

appropriate when three conditions are met:

       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.



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Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997); see also D.L. v. Unified Sch.

Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). If these requirements are met and

no exceptions to Younger apply, a federal court must abstain from hearing a case.

Weitzel v. Div. of Occupational & Prof’l Licensing, 240 F.3d 871, 875 (10th Cir. 2001).

       As the district court correctly determined, these three conditions are readily

satisfied in this instance. First, Plaintiff is subject to an ongoing state criminal

proceeding. Second, Plaintiff has failed to show why the state criminal case would not be

an adequate forum to hear his constitutional challenges to the evidence that he alleges

was illegally obtained. See Kugler v. Helfant, 421 U.S. 117, 124 (1975) (“[O]rdinarily a

pending state prosecution provides the accused a fair and sufficient opportunity for

vindication of federal constitutional rights.”); see also Younger, 401 U.S. at 43-44.

Third, Colorado has an important interest in the administration of its criminal laws. See

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-13 (1987). Lastly, Plaintiff has failed to

carry his burden of demonstrating either bad faith prosecution on the part of the state or

extraordinary circumstances in which the state court proceeding will cause him

immediate irreparable injury. See Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir.

1997) (“[A petitioner] may overcome the presumption of abstention in cases of proven

harassment or prosecutions undertaken by state officials in bad faith without hope of

obtaining a valid conviction and perhaps in other extraordinary circumstances where

irreparable injury can be shown.” (internal quotation marks omitted)). Thus, federal

court jurisdiction is not appropriate in the instant action.



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        For the foregoing reasons, and for substantially the same reasons given by the

district court, we AFFIRM the dismissal of this case without prejudice. We GRANT

Plaintiff’s motion to proceed in forma pauperis on appeal but remind him of his

obligation to continue making partial payments until the entire filing fee has been paid in

full.


                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




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