              Case: 16-15869    Date Filed: 07/14/2017   Page: 1 of 9


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-15869
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:15-cv-01009-CEM-TBS



MARIE HENRY,
Individually and on behalf of her child, M.E. as her
interests may appear,

                                                               Plaintiff-Appellant,

                                    versus

THE FLORIDA BAR,
JOHN F. HARKNESS, JR.,
Executive Director Florida Bar, in his professional
and individual capacities,
JOANN M. STALCUP,
Bar Counsel Florida Bar in her professional and
individual capacities,
ADRIA E. QUINTELA,
Director Lawyer Regulation in her professional and
individual capacities,
JAN K. WICHROWSKI,
Chief Brank Discipline Counsel, in her professional
and individual capacities,

                                                            Defendants-Appellees.
                  Case: 16-15869       Date Filed: 07/14/2017   Page: 2 of 9


                                ________________________

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

                                         (July 14, 2017)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

         Marie Henry, proceeding pro se on behalf of herself and her child, appeals

the dismissal of her civil rights complaint against the Florida Bar and John F.

Harkness, the executive director of the Florida Bar; JoAnn Stalcup, counsel for the

Florida Bar; Adria Quintela, director of lawyer regulation for the Florida Bar; and

Jan Wichrowski, chief branch discipline counsel for the Florida Bar (collectively,

“individual defendants”), alleging violations of 42 U.S.C. §§ 1981, 1983, 1985,

1986, 1988 and state laws, as being barred by immunity and the Younger 1

abstention doctrine. On appeal, Henry argues that the Florida Bar should not be

entitled to Eleventh Amendment immunity because it is not an arm of the state,

that the individual defendants are not immune from suit, and that the Younger

abstention doctrine should not apply. We address each argument in turn.

                                               I.




1
    Younger v. Harris, 401 U.S. 37 (1971).
                                               2
               Case: 16-15869     Date Filed: 07/14/2017     Page: 3 of 9


      We review de novo the grant of a motion to dismiss based upon a state’s

Eleventh Amendment immunity. In re Employment Discrimination Litig. Against

State of Ala., 198 F.3d 1305, 1310 (11th Cir. 1999). We also review de novo

whether an entity constitutes an arm of the state under Eleventh Amendment

immunity analysis. Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764, 768 (11th

Cir. 2014).

      Eleventh Amendment immunity bars suits by private individuals against a

state in federal court unless the state consented to be sued, waived its immunity, or

Congress abrogated the states' immunity. Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356, 363-64 (2001). Congress has not abrogated Eleventh Amendment

immunity in 42 U.S.C. §§ 1981, 1983, or 1985 cases, and Florida has not waived

its Eleventh Amendment immunity in federal civil rights actions. Sessions v. Rusk

State Hosp., 648 F.2d 1066, 1069 (5th Cir. June 26, 1981); Gamble v. Florida

Department of Health and Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir.

1986); Fincher v. State of Fla. Dep't of Labor & Employment Sec. Unemployment

Appeals Comm'n, 798 F.2d 1371, 1372 (11th Cir. 1986). A successful claim under

42 U.S.C. § 1986 is predicated on a successful action under § 1985. Morast v.

Lance, 807 F.2d 926, 930 (11th Cir. 1987).

      “To receive Eleventh Amendment immunity, a defendant need not be

labeled a ‘state officer’ or ‘state official,’ but instead need only be acting as an


                                            3
               Case: 16-15869      Date Filed: 07/14/2017      Page: 4 of 9


‘arm of the State.’” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en

banc). We previously held that the Florida Bar is an arm of the state to which

Eleventh Amendment immunity is extended. Kaimowitz v. Florida Bar, 996 F.2d

1151, 1155 (11th Cir. 1993); Nichols v. Alabama State Bar, 815 F.3d 726, 732

(11th Cir. 2016); see also Rules Regulating the Florida Bar, Chapter 1,

Introduction (“The Supreme Court of Florida by these rules establishes the

authority and responsibilities of The Florida Bar, an official arm of the court.”).

Furthermore, we previously held that the Florida Bar Rules establish that officials

acting in disciplinary proceedings are agents of the Florida Supreme Court; thus,

they are entitled to absolute immunity. Carroll v. Gross, 984 F.2d 392, 393 (11th

Cir. 1993).

       Suits against state officials in their official capacities are treated as suits

against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). Official-capacity

defendants may assert the same immunities that the governmental entity possesses.

Id. However, the Eleventh Amendment does not bar claims against a state official

who acted outside the scope of his statutory authority or pursuant to an

unconstitutional authority. Cate v. Oldham, 707 F.2d 1176, 1180 (11th Cir. 1983).

Furthermore, under the doctrine enunciated in Ex parte Young, a suit requesting

injunctive relief on a prospective basis for an ongoing constitutional violation

against a state official in his or her official capacity is not a suit against the state,


                                             4
              Case: 16-15869      Date Filed: 07/14/2017   Page: 5 of 9


and thus does not violate the Eleventh Amendment. Grizzle v. Kemp, 634 F.3d

1314, 1319 (11th Cir. 2011). Additionally, we previously held that neither a state

nor its officials acting in their official capacities are “persons” under § 1983. Will

v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

      Under the prior panel precedent rule, subsequent panels are bound by the

holding of a prior panel until it is overruled or undermined to the point of

abrogation by a decision of the Supreme Court or this Court sitting en banc.

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). There is no

“overlooked reason or argument” exception to the prior precedent rule. United

States v. Johnson, 528 F.3d 1318, 1320 (11th Cir. 2008), rev’d on other grounds,

559 U.S. 133 (2010). An intervening decision of the Supreme Court can overrule

the decision of a prior panel, but the Supreme Court decision must be clearly on

point. Archer, 531 F.3d at 1352.

      Eleventh Amendment immunity bars Henry’s claims against the Florida Bar

under 42 U.S.C. §§ 1981, 1983, and 1985 because neither Congress nor the state of

Florida have abrogated Eleventh Amendment immunity under those claims. See

Bd. of Trs. of Univ. of Ala., 531 U.S. at 363–64; Sessions, 648 F.2d at 1069;

Gamble, 779 F.2d at 1511; Fincher, 798 F.2d at 1372. We previously held that the

Florida Bar is entitled to Eleventh Amendment immunity as an arm of the state,

and the prior panel rule requires that we adhere to that holding. Kaimowitz, 996


                                           5
              Case: 16-15869     Date Filed: 07/14/2017   Page: 6 of 9


F.2d at 1155; Archer, 531 F.3d at 1352. Furthermore, because Eleventh

Amendment immunity bars Henry’s 42 U.S.C. § 1985 claim against the Florida

Bar, she cannot make a successful § 1986 claim. See Morast, 807 F.2d at 930.

      The individual defendants are likewise immune as state officials from

Henry’s claims against them in their official capacities for monetary damages. See

Hafer, 502 U.S. at 25. Henry failed to show that the individual defendants acted

according to unconstitutional authority or acted outside of their authority to remove

them from Eleventh Amendment immunity; in fact, Henry stated in her complaint

that the individual defendants were acting within the course and scope of their

employment with the Florida bar during her disciplinary proceedings. See Cate,

707 F.2d at 1180. The Ex Parte Young exception to Eleventh Amendment

immunity only applies to prospective injunctive relief and thus does not overcome

immunity for monetary damages. Grizzle, 634 F.3d at 1319. Finally, the

individual defendants were entitled to absolute immunity as agents of the Florida

Supreme Court and were not “persons” subject to suit under 42 U.S.C. § 1983. See

Carroll, 984 F.2d at 393; Will, 491 U.S. at 71.

                                         II.

      We review the district court’s decision to apply Younger abstention for an

abuse of discretion. Hughes v. Attorney General of Florida, 377 F.3d 1258, 1262




                                         6
               Case: 16-15869     Date Filed: 07/14/2017    Page: 7 of 9


(11th Cir. 2004). A district court abuses its discretion when it makes an error of

law. United States v. Pruitt, 174 F.3d 1215, 1219 (11th Cir. 1999).

      In Younger v. Harris, the Supreme Court held that a federal court should not

act to restrain an ongoing state court criminal prosecution. 401 U.S. at 55. The

Supreme Court expanded the Younger abstention doctrine to apply to pending civil

proceedings which implicate state courts’ important interests in administering

certain aspects of their judicial systems, including state disciplinary proceedings

because they are judicial in nature and implicate important state interests. Green v.

Jefferson Cty. Comm’n, 563 F.3d 1243, 1250-51 (11th Cir. 2009); Middlesex Cnty.

Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 434-35 (1982). Younger

abstention applies to claims for injunctive relief, as well as claims for declaratory

judgment that would effectively enjoin state proceedings. Old Republic Union

Insurance Co. v. Tillis Trucking Co., 124 F.3d 1258, 1261 (11th Cir. 1997).

      For Younger abstention to apply, state judicial proceedings must be ongoing,

the proceedings must implicate important state interests, and the federal plaintiff

must have an adequate opportunity to raise constitutional challenges in the state

proceedings. 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003).

The first factor is met when a state proceeding is ongoing and the relief sought by

the plaintiff would interfere with the state proceeding. Id. at 1275–76. The

plaintiff’s requested relief can interfere with the state proceeding if it would disrupt


                                           7
              Case: 16-15869     Date Filed: 07/14/2017    Page: 8 of 9


the normal course of action in the state proceeding, even if the relief sought would

not terminate an ongoing proceeding. Id. at 1276. We previously held that, in

determining whether a proceeding is ongoing and Younger is applicable, the date

of filing of the federal complaint is the relevant date. Liedel v. Juvenile Court of

Madison Cty., Ala., 891 F.2d 1542, 1546 n. 6 (11th Cir. 1990).

      For the third 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, 329 F.3d at 1279. “A federal court should assume that state

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

authority to the contrary.” Id. (internal quotation omitted).

      Exceptions to Younger abstention include bad faith, harassment, or a

patently invalid state statute. Redner v. Citrus County, 919 F.2d 646, 649 (11th

Cir. 1990). A proceeding is initiated in bad faith if it is brought without a

reasonable expectation of obtaining a valid conviction. Id. at 650. A state statute

may cause irreparable injury, justifying an exception to Younger abstention, when

it flagrantly and patently violates express constitutional prohibitions. Hughes, 377

F.3d at 1264. Extraordinary circumstances may justify an exception to Younger

abstention when the state court cannot fairly and fully adjudicate the constitutional

issues and the plaintiff presents “an extraordinarily pressing need for immediate

federal equitable relief.” Kugler v. Helfant, 421 U.S. 117, 124-25 (1975).


                                           8
              Case: 16-15869      Date Filed: 07/14/2017   Page: 9 of 9


      The district court did not abuse its discretion in determining that Henry’s

remaining claims, including her claims for injunctive relief, were barred by the

Younger abstention doctrine. See Old Republic Union Insurance Co., 124 F.3d at

1261. Younger is applicable because the state proceeding was ongoing due to the

fact that the Florida Supreme Court judgment was not final at the time that Henry

filed her complaint, the disciplinary proceedings were judicial and implicated

important state interests, a decision in federal court would interfere with the state

proceeding, and Henry had an opportunity to raise her constitutional concerns in

the state proceedings. 31 Foster Children v. Bush, 329 F.3d at 1274–76; Liedel,

891 F.2d at 1546 n. 6; Middlesex, 457 U.S. at 434–35. Henry did not show that she

could not raise her concerns in the state proceedings, and she did not show that any

of the exceptions to Younger should apply. 31 Foster Children, 329 F.3d at 1279;

Redner, 919 F.2d at 649.

      AFFIRMED.




                                           9
