FILED

United States Court of Appeals

Tenth Circuit

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

Clerk of Court

JOSEPH GOINGS,
Plaintiff-Appellant,
v.
SUMNER COUNTY DISTRICT
ATTORNEYS OFFICE; KERWIN
SPENCER,

No. 13-3309
(D.C. No. 6:13-CV-01107-RDR-KMH)
(D. Kan.)

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 courts dismissal of his civil-rights complaint. Our appellate
jurisdiction is conferred by 28 U.S.C. 1291, and we affirm the district courts
dismissal of Mr. Goingss 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This order and judgment is not binding precedent, except under the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. Goingss
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. 216206(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 attorneys 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 clerks 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. Goingss discovery motion.
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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.
Goingss criminal case. R. at 86 (Subpoena, returned Mar. 13, 2013). Officer
Hedge did not appear at the hearing, and Mr. Goingss discovery motion was not
granted during that proceeding.
On March 18, 2013while his state criminal case was pendingMr.
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 Attorneys 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. Goingss 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. Goingss complaint presented two 1983 claims. The
first claim was directed at Mr. Spencer, alleging that he violated Mr. Goingss
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. Goingss subpoenas. The second claim
was directed at the Sumner County District Attorneys 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. Goingss
complaint did not pass muster under Federal Rule of Civil Procedure
12(b)(6)i.e., it failed to state a claim for reliefbecause (a) the Sumner
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County District Attorneys 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 Attorneys Office was
not amenable to suit and that absolute prosecutorial immunity shielded all of Mr.
Spencers alleged conduct pertaining to the discovery procedures and processes in
Mr. Goingss 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 plaintiffs criminal case is
ongoing. Second, the state court in which the criminal
prosecution is proceeding is an adequate forum to hear plaintiffs
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 Kansass 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. Goingss complaint for failure to state a claim and based upon

the application of Younger abstention. Id. The district court did not specify
whether its dismissal of Mr. Goingss complaint was with or without prejudice.
II
A
We note at the outset that because Mr. Goingss 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 courts Rule 12(b)(6) dismissal of
Mr. Goingss 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. Goingss complaint under Rule 12(b)(6), where the conditions
were satisfied for application of Younger abstention. Therefore, in conducting
our review of the district courts dismissal, our focus is only on the propriety of
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the courts Younger analysis. Finding that analysis sound and proper, we have no
need to determine whether the district courts judgment could be upheld on the
alternative ground of Rule 12(b)(6). Like a 12(b)(6) dismissal, however, we
review a district courts decision to abstain under Younger de novo. See
Yellowbear v. Wyo. Atty 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).
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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 plaintiffs 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. Examrs, 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. Assn, 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. Goingss state criminal prosecutioninitiated in January 2013was
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
Websters Third New International Dictionary 1576 (2002) (defining ongoing
to mean, inter alia, actually in process). Mr. Goingss arguments on appeal
cast no doubt on the district courts 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. Goingss 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 [Plaintiffs] claims as of that
time.); see also Chapman v. Barcus, 372 F. Appx 899, 902 (10th Cir. 2010)
(finding Youngers 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. Appx 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, Youngers 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 Youngers 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. Goingss claims. Cf. Chapman, 472 F.3d at 749
(noting the same regarding divorce-court proceedings).
Finally, Youngers third condition is unmistakably satisfied. The State of
Kansas has a vital interest in prosecuting individuals believed to have committed
crimes against others personsincluding, 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 courts reasoned conclusion that the state proceeding here
implicated important state interests vis--vis the prevention of crime, see SenecaCayuga Tribe, 874 F.2d at 71112, and we do not do so.
Because all three Younger requirements are present in Mr. Goingss
caseand 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 & Profl Licensing, 240 F.3d 871,
87778 (10th Cir. 2001).
C
1
After reaching its conclusion to abstain under Youngerwhich our de novo
analysis has determined to be correctthe 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 Caldwells 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 Pship 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
purposesformal semantics asidethe salient point is that Younger required the
district court not to rule on the merits of Mr. Goingss complaint.
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reach the alternate grounds for dismissal which were cited by the District
Court.). Indeed, as we held in Taylor, a federal courts conclusion that Younger
abstention applies ends the matter. 126 F.3d at 1298 (emphasis added). We
cannot harmonize the district courts duty to abstaini.e., refrain from doing
something, Blacks Law Dictionary 9 (9th ed. 2009)regarding Mr. Goingss
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.
Goingss 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 Caldwells complaint, we reverse the order of the
District Court insofar as it appears to dismiss Caldwells complaint with
prejudice.); cf. D.A. Osguthorpe Family Pship, 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 courts silence regarding the with- or withoutprejudice 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 19operates 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
issueis an adjudication on the merits. See Federated Dept 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 Intl 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, 73942 (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 courts 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. Goingss action without
prejudice.
III
We AFFIRM the district courts dismissal of Mr. Goingss complaint and
REMAND the case to the court with instructions to amend its judgment to
14

explicitly dismiss Mr. Goingss lawsuit without prejudice.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

15