UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

MICHAEL D. LEATHERWOOD, 

 Plaintiff-Appellant, 

v. 

JOHN WHETSEL, Sheriff; DAVID 

PRATER, District Attorney; GAYLAND 

GIEGER, Assistant DA; DANA 

BASEHORE, Employee OCDC; JASON 

BASS, Employee OK Co Sheriff; 

DENISE WELKER, Employee DOC, 

 Defendants-Appellees. 

No. 13-6073 

(D.C. No. 5:12-CV-00251-C) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior 

Circuit Judge. 

 

 

 Michael D. Leatherwood, an Oklahoma prisoner proceeding pro se, appeals the 

district court’s order dismissing without prejudice his complaint brought under 

42 U.S.C. § 1983. He claimed that his constitutional rights were violated when jail 

 

* After examining the briefs and appellate record, this panel has determined 

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 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 11, 2013

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

officials opened his non-legal, non-privileged mail and delivered it to the office of 

the Oklahoma County District Attorney. We have jurisdiction under 28 U.S.C. 

§ 1291 and affirm. 

I. BACKGROUND 

 In 2009, Mr. Leatherwood entered guilty pleas to six counts of rape. He was 

sentenced to 20 years on each count to run concurrently. All but the first 90 days 

were suspended. As a condition of his probation, he could not “date, socialize, or 

enter into a romantic or sexual relationship with any person who has children under 

the age of eighteen (18) years.” R. Vol. 1 at 114. 

In January 2010, the suspended sentences were partially revoked and 

Mr. Leatherwood was ordered to serve five years on each sentence, while the 

remaining 15 years continued to be suspended. At that point, Mr. Leatherwood was 

incarcerated at the Oklahoma County Detention Center awaiting transfer to the 

Oklahoma Department of Corrections. He claims that jail officials improperly seized 

and copied his personal mail and delivered the copies to defendant Geiger, an 

assistant district attorney. He maintains that while he was incarcerated at the 

detention center, the conditions of his release were not applicable. Therefore, he 

argues, defendants were not authorized to monitor his mail to determine if he was 

complying with the conditions of his probation, in particular, the prohibition against 

socializing with anyone who had children under 18 years of age. But based on his 

correspondence from the detention center with a woman who had children under the 
- 3 - 

age of 18, in August 2010, the remainder of Mr. Leatherwood’s suspended sentences 

was revoked. 

Mr. Leatherwood appealed the revocation to the Oklahoma Court of Criminal 

Appeals, which affirmed on January 13, 2012. Next, Mr. Underwood filed a 

post-conviction motion in state court. While that action was pending, he filed the 

underlying federal case asserting violations of his rights under the First, Fourth, and 

Fourteenth Amendments. Then he filed a second state post-conviction motion. The 

state district court denied both post-conviction motions on June 18, 2012. 

Mr. Leatherwood’s appeal from the denial of his post-conviction motions was 

pending at the time the district court dismissed the federal complaint. 

In dismissing the complaint, the federal district court adopted the 

recommendation of a magistrate judge to abstain from hearing Mr. Leatherwood’s 

claims pursuant to the abstention doctrine established in Younger v. Harris, 401 U.S. 

37 (1971), because state-court proceedings were pending. In an alternative ruling, 

the court held that Mr. Leatherwood’s constitutional claims brought under § 1983 

must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) 

(prohibiting an individual from recovering damages in a § 1983 action for an 

allegedly unlawful confinement where there has not been a favorable termination of 

the criminal action on appeal or in a collateral action). Accordingly, the district court 

dismissed the complaint without prejudice and Mr. Leatherwood appeals. We 
- 4 - 

conclude that the district court properly abstained under Younger, so we need not 

review the court’s alternative ruling under Heck. 

II. DISCUSSION 

 “We review de novo the district court’s abstention decision.” Walck v. 

Edmondson, 472 F.3d 1227, 1232 (10th Cir. 2007). Mr. Leatherwood is proceeding 

pro se, so we liberally construe his pleadings. See Knox v. Bland, 632 F.3d 1290, 

1292 (10th Cir. 2011). 

Absent extraordinary circumstances, abstention is mandatory if the following 

three circumstances are present: 

(1) there is an ongoing state criminal, civil, or administrative 

proceeding, (2) the state court provides an adequate forum to hear the 

claims raised in the federal complaint, and (3) the state proceedings 

involve important state interests, matters which traditionally look to 

state law for their resolution or implicate separately articulated state 

policies. 

Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006) (internal quotation marks 

omitted). Mr. Leatherwood concedes the first factor and makes no appellate 

argument concerning the third. He contends that the second factor is not met because 

he did not, and now cannot, bring in state court his constitutional claims relating to 

his mail.1

 

 

1

 Mr. Leatherwood does not claim that unusual circumstances render the 

abstention doctrine inapplicable. Cf. Walck, 472 F.3d at 1233-34 (stating risk of 

irreparable injury by “a threatened state prosecution in violation of the Double 

Jeopardy Clause” warranted federal intervention). 
- 5 - 

 Mr. Leatherwood asserts that because he did not include his federal claims 

concerning his mail in the state court appeals or post-conviction motions, and 

because those claims would now be deemed waived, the state court does not provide 

an adequate forum. But Mr. Leatherwood does not argue that he was foreclosed from 

including his claims about his mail in his initial filings to the state courts. 

 Generally, a plaintiff has an adequate opportunity to raise federal claims in 

state court “unless state law clearly bars the interposition of the [federal statutory 

and] constitutional claims.” Moore v. Sims, 442 U.S. 415, 425-26 (1979). 

Mr. Leatherwood did not even attempt to raise his federal constitutional claims 

presented here in the state proceedings. Abstention contemplates that a litigant 

should first seek relief in the state courts, “unless it plainly appears that this course 

would not afford adequate protection.” Middlesex Cnty. Ethics Comm. v. Garden 

State Bar Ass’n, 457 U.S. 423, 435 (1982) (internal quotation marks omitted). 

Moreover, “when a litigant has not attempted to present his federal claims in related 

state-court proceedings, a federal court should assume that state procedures will 

afford an adequate remedy, in the absence of unambiguous authority to the contrary.” 

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Mr. Leatherwood has not 

explained why he could not have presented his constitutional claims about his mail at 

his August 2010 revocation hearing or in his post-conviction motion based on the 

August 2010 revocation. Thus, he has failed to meet his burden “to show that state 

procedural law barred presentation of [his] claims.” Id. at 14. Accordingly, we 
- 6 - 

conclude that the district court correctly abstained under Younger from hearing 

Mr. Leatherwood’s claims. 

III. CONCLUSION 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 Mary Beck Briscoe 

 Chief Judge