UNITED STATES CO URT 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 di smissing without prejudice hi s complaint brought under 42 U.S.C. § 1983. He claimed that his c onstitutional rights were violated when jail

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 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 de livered it to the office of the Oklahoma County District Attorney. We have jurisdic tion 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 c oncurrently. All but the first 90 days were suspended. As a condition of his proba tion, he could not “date, socialize, or enter into a romantic or sexual relations hip with any person who has children under the age of eighteen (18) year s.” R. Vol. 1 at 114. In January 2010, the suspended se ntences were partially revoked and Mr. Leatherwood was ordered to serve fi ve years on each se ntence, while the remaining 15 years continued to be suspende d. At that point, Mr. Leatherwood was incarcerated at the Oklahoma County Deten tion Center awaiting transfer to the Oklahoma Department of Corrections. He clai ms that jail officials improperly seized and copied his personal mail and delivered the copies to defendant Geiger, an assistant district at torney. He maintains that while he was incarcerated at the detention center, the conditions of his rel ease 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 probati on, in particular, th e prohibition against socializing with anyone who had children under 18 years of age. But based on his correspondence from the detent ion 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 revocati on 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 assert ing 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 deni al of his post-conviction motions was pending at the time the district cour t dismissed the fede ral complaint. In dismissing the compla int, the federal district court adopted the recommendation of a magistrate judge to abstain from heari ng Mr. Leatherwood’s claims pursuant to the absten tion doctrine established in Younger v. Harris , 401 U.S. 37 (1971), because state-court proceedings we re 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 recove ring damages in a § 1983 action for an allegedly unlawful confinemen t where there has not been a favorable termination of the criminal action on appeal or in a collatera l action). Accordingly, the district court dismissed the complaint without prejudi ce 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, ab stention is mandatory if the following three circumstances are present: (1) there is an ongoing state crim inal, civil, or administrative proceeding, (2) the state court provide s an adequate forum to hear the claims raised in the federal compla int, and (3) the state proceedings involve important state interests, ma tters which traditionally look to state law for their resolution or imp licate separately articulated state policies. Chapman v. Oklahoma , 472 F.3d 747, 749 (10th Cir. 2006) (internal quotation marks omitted). Mr. Leatherwoo d concedes the first fact or and makes no appellate argument concerning the third. He contends that the sec ond 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 th at unusual circumstances render the abstention doctrine inapplicable. Cf. Walck , 472 F.3d at 1233-34 (stating risk of irreparable injury by “a threatened stat e prosecution in violation of the Double Jeopardy Clause” warrante d federal intervention).- 5 - Mr. Leatherwood asserts that because he did not include his federal claims concerning his mail in th e 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 doe s not argue that he was foreclosed from including his claims about his mail in hi s initial filings to th e state courts. Generally, a plaintiff has an adequate opportunity to raise federal claims in state court “unless state law clearly bars the interpositi on 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 c onstitutional claims presented here in the stat e proceedings. Abstention c ontemplates that a litigant should first seek relief in the state courts, “unless it plainl y appears that this course would not afford adequate protection.” Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n , 457 U.S. 423, 435 (198 2) (internal quotation marks omitted). Moreover, “when a litigant has not attempted to present his federa l claims in related state-court proceedings, a federal court s hould 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 constituti onal 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 presen tation of [his] claims.” Id. at 14. Accordingly, we- 6 - conclude that the district c ourt correctly abstained under Younger from hearing Mr. Leatherwood’s claims.
III. CONCLUSION The judgment of the distri ct court is affirmed.

Entered for the Court
Mary Beck Briscoe Chief Judge