PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KENNETH SCOTT NIVENS; GLEN LANCE
MANERS; TERRI LYNN STORK,
Plaintiffs-Appellants,
v. No. 05-1276
PETER S. GILCHRIST, III,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-03-534)
Argued: February 1, 2006
Decided: April 11, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Motz and Judge King joined.
COUNSEL
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellants. Norma Smithwick Harrell, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney
General, Raleigh, North Carolina, for Appellee.
2 NIVENS v. GILCHRIST
OPINION
WILLIAMS, Circuit Judge:
Appellants Kenneth Scott Nivens, Glen Lance Maners, and Terri
Lynn Stork previously brought an action in the United States District
Court for the Western District of North Carolina, seeking to enjoin a
pending state criminal drug prosecution against them. Appellants con-
tended that because they had already paid North Carolina’s drug tax,
their prosecution would violate the Fifth Amendment’s Double Jeop-
ardy Clause, made applicable to the states via the Fourteenth Amend-
ment. In Nivens v. Gilchrist, 319 F.3d 151 (4th Cir. 2003) (Nivens I),
we held the district court properly abstained from exercising jurisdic-
tion over Appellants’ case based on Younger v. Harris, 401 U.S. 37
(1971), in part because Appellants had failed to take advantage of pre-
trial avenues to raise their double jeopardy defense in their state pros-
ecution. After our decision in Nivens I, Appellants raised their double
jeopardy defense in state court, where it was denied on the merits.
Appellants then returned to federal court, asking the district court to
declare the North Carolina drug tax a criminal penalty, enjoin their
pending state criminal trial, and award damages for pain and suffer-
ing. The district court again abstained from exercising jurisdiction
over Appellants’ claims and dismissed the suit with prejudice.
Because the district court properly abstained under Younger, we
affirm the dismissal of Appellants’ claims for declaratory and injunc-
tive relief. We also affirm the dismissal of Appellants’ damages
claims against Appellee Peter S. Gilchrist, III, the District Attorney
for the Twenty-Sixth Prosecutorial District of North Carolina,
because Gilchrist is entitled to immunity in both his official and indi-
vidual capacities.
I.
The relevant facts of this appeal are straightforward and not in dis-
pute. On July 8, 2000, Appellants were arrested for violations of the
North Carolina Unauthorized Substances Act because of their alleged
possession and sale of the drug commonly known as ecstasy. Shortly
thereafter, the North Carolina Department of Revenue issued notices
of tax assessments for possession of the drugs pursuant to North Car-
olina’s Unauthorized Substances Tax Act, N.C. Gen. Stat. §§ 105-
NIVENS v. GILCHRIST 3
113.105-105.113.113. Within a couple of weeks, North Carolina col-
lected $5730.00 from Nivens, which North Carolina accepted as com-
plete satisfaction of the initial tax for all three Appellants.1 On
January 8, 2001, Stork was assessed two additional taxes in the
amount of $1,081.13, which she paid in full. Maners never paid a tax.
Appellants were subsequently indicted under North Carolina law
for possession, sale, delivery, and transportation of, and conspiracy to
sell and deliver an unauthorized substance. A criminal trial was
scheduled for the November 5, 2001, term of the Superior Court of
North Carolina. On October 29, 2001, Appellants filed an action
under 42 U.S.C.A. § 1983 (West 2003) in federal district court for a
temporary restraining order and a preliminary injunction to stay their
trial, naming Gilchrist as the sole defendant. The district court
abstained under Younger and dismissed Appellants’ case without prej-
udice. We affirmed that decision. See Nivens I, 152 F.3d at 162.
In state court, Appellants then moved to dismiss North Carolina’s
prosecution pursuant to N.C. Gen. Stat. Ann. § 15A-952(a) (Lexis-
Nexis 2003), which provides that "[a]ny defense, objection, or request
which is capable of being determined without the trial of the general
issue may be raised before trial by motion." The court, however,
denied Appellants’ motion to dismiss on double jeopardy grounds
because the motion conflicted with State v. Ballenger, 472 S.E.2d 572
(N.C. App. 1996), aff’d per curiam, 481 S.E.2d 84 (N.C. 1997),
which held that the pre-1995 version of North Carolina’s drug tax was
not a criminal penalty.2 The North Carolina Court of Appeals and
Supreme Court subsequently denied Nivens’s petitions for certiorari.
1
North Carolina only requires that a drug’s tax be paid once. Thus,
although Nivens, Maners, and Stork all received assessments, Nivens’s
payment was sufficient to cover all three original assessments because
the same drugs were taxed three times.
2
State v. Ballenger addressed the pre-1995 version of North Carolina’s
drug tax, 472 S.E.2d 572 (N.C. App. 1996), which we determined was
a criminal penalty in Lynn v. West, 134 F.3d 582 (4th Cir. 1998). North
Carolina’s legislature subsequently amended their drug tax "so that the
tax may continue to be assessed in a manner consistent with the law as
interpreted [in Lynn]." An Act to Amend the Excise Tax on Controlled
Substances, N.C. Sess. Laws 1998-218 (1998). In other words, it
amended the law with the goal of continuing to raise revenue via a civil
tax rather than creating a criminal penalty.
4 NIVENS v. GILCHRIST
Appellants then returned to federal district court, where they filed
the instant § 1983 action and North Carolina moved the district court
to dismiss the action or abstain from exercising jurisdiction. On Feb-
ruary 3, 2005, the district court, relying on Younger and our decision
in Nivens I, entered an order dismissing Appellants’ complaint "with
prejudice" because the court concluded that it "lack[ed] subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)." (J.A. at
1426.) Appellants timely appealed, and this Court has jurisdiction
under 28 U.S.C.A. § 1291 (West 1993).
II.
The issue on appeal is whether the district court erred in dismissing
Appellants’ claims for declaratory, injunctive, and monetary relief,
and if not, whether the district court erred in doing so with prejudice.
We review for abuse of discretion the district court’s decision to
abstain under Younger. Nivens I, 319 F.3d at 153. We first address the
district court’s decision to abstain with respect to Appellants’ claims
for declaratory and injunctive relief.
A.
In Younger, the Supreme Court detailed our "national policy for-
bidding federal courts to stay or enjoin pending state court proceed-
ings except under special circumstances." Younger, 401 U.S. at 41. As
we noted in Nivens I, Younger was based on principles of equity and
comity. See Nivens I, 319 F.3d at 153. As to equity, the Supreme
Court explained "that courts of equity should not act, and particularly
should not act to restrain a criminal prosecution, when the moving
party has an adequate remedy at law and will not suffer irreparable
injury if denied equitable relief." Younger, 401 U.S. at 43-44. Because
in a typical state criminal trial a defendant can raise his constitutional
claims as a defense to prosecution, he has an adequate remedy at law.
The Court addressed the comity principle by referencing the policy of
"Our Federalism," which recognizes that "anxious though [the
National Government] may be to vindicate and protect federal rights
and federal interests, [it] always endeavors to do so in ways that will
not unduly interfere with the legitimate activities of the States." Id. at
44 (internal quotation marks omitted). Thus, the Younger doctrine is
anchored in a "belief that the National Government will fare best if
NIVENS v. GILCHRIST 5
the States and their institutions are left free to perform their separate
functions in their separate ways." Id.
Absent a few extraordinary exceptions, Younger mandates that a
federal court abstain from exercising jurisdiction and interfering in a
state criminal proceeding3 if (1) there is an ongoing state judicial pro-
ceeding brought prior to substantial progress in the federal proceed-
ing; that (2) implicates important, substantial, or vital state interests;
and (3) provides adequate opportunity to raise constitutional chal-
lenges. See Middlesex County Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 432 (1982); Nivens I, 319 F.3d at 153.
The Supreme Court has recognized that a federal court may disre-
gard Younger’s mandate only where (1) "there is a showing of bad
faith or harassment by state officials responsible for the prosecution";
(2) "the state law to be applied in the criminal proceeding is flagrantly
and patently violative of express constitutional prohibitions"; or (3)
"other extraordinary circumstances" exist that present a threat of
immediate and irreparable injury. Kugler v. Helfant, 421 U.S. 117,
124 (1975) (internal quotation marks omitted). Although as a general
matter, "the cost, anxiety, and inconvenience of having to defend
against a criminal prosecution alone [does] not constitute irreparable
injury," Younger, 401 U.S. at 46 (internal quotation marks omitted),
we have previously recognized that one such extraordinary circum-
stance may exist in the double jeopardy context, where "a portion of
the constitutional protection [the Double Jeopardy Clause] affords
would be irreparably lost if [claimants] were forced to endure [a] sec-
ond trial before seeking to vindicate their constitutional rights at the
federal level." Gilliam v. Foster, 75 F.3d 881, 904 (4th Cir. 1996) (en
banc) (Gilliam III).
B.
To the extent Appellants argue that abstention was improper in this
case, that argument is largely foreclosed by our decision in Nivens I,
where we held "[b]ecause Appellants failed to establish any of the
3
Younger, in circumstances not relevant here, has since been extended
beyond the strict criminal context. See, e.g., Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 14 (1987).
6 NIVENS v. GILCHRIST
exceptions to Younger, . . . the district court did not abuse its discre-
tion in abstaining from adjudicating Appellants’ double jeopardy
claim." Nivens I, 319 F.3d at 162. In that case, Appellants had argued
that (1) Younger was inapplicable because the North Carolina courts
would plainly not afford them adequate protection and (2) abstention
was improper because "a colorable claim of a double jeopardy viola-
tion [was] sufficient to establish exceptional circumstances warrant-
ing federal court intervention without any separate showing." Id. at
155, 159.
The Appellants’ first Nivens I argument stemmed from their belief
that North Carolina courts would not consider their claim that the
post-1995 amendment drug tax was a criminal penalty because those
courts had already ruled, in Ballenger, 472 S.E.2d 572, that the pre-
1995 amendment was not a criminal penalty. Nivens I, 319 F.3d at
155. Further, Appellants suggested that because we previously had
determined that the pre-1995 amendment was a criminal penalty, see
Lynn v. West, 134 F.3d 582, 593-94 (4th Cir. 1998), it was necessary
for the district court to assert jurisdiction in order to afford adequate
protection from North Carolina’s inevitable violation of Appellants’
constitutional rights. Nivens I, 319 F.3d at 155.
We rejected these arguments because, inter alia, the post-1995
"drug tax [was not] sufficiently similar to the [pre-1995] drug tax
such that we should treat them the same." Nivens I, 319 F.3d at 158.
Thus, we treated the penalty status of the post-1995 drug tax as an
open question that had yet to be addressed by the North Carolina or
federal courts.4 Once this determination was made, Appellants’ first
argument boiled down to an "assertion that the North Carolina courts
4
We note that since our decision in Nivens I, the Middle District of
North Carolina has held that the North Carolina drug tax is a tax under
state law and not a criminal penalty. Hough v. Mozingo, 2005 WL
2216877 (Sep. 12, 2005) (unpublished) (adopting Hough v. Mozingo,
2005 WL 1168462, at *7 (M.D.N.C. Apr. 29, 2005) (magistrate opin-
ion)). Moreover, while this appeal was pending, the North Carolina
Supreme Court affirmed Ballenger’s central holding that the North Caro-
lina drug tax did not constitute punishment for double jeopardy purposes.
See N.C. School Bds. Ass’n v. Moore, 614 S.E.2d 504, 515-16 (N.C.
2005).
NIVENS v. GILCHRIST 7
[would] likely decide a constitutional issue in a way contrary to what
Appellants believe the Constitution mandates." Id. We concluded that
this was "not a sufficient basis to avoid application of Younger
abstention." Id.
Appellants’ second Nivens I argument was based on a misreading
of our decision in Gilliam III. We concluded that Gilliam III did not,
as Appellants suggested, hold that a "colorable" double jeopardy alle-
gation automatically precludes Younger abstention. Nivens I, 319 F.3d
at 159. Rather, as we noted in Nivens I, Gilliam III held that a party
must show a "substantial likelihood of an irreparable double jeopardy
violation" in order to avoid Younger abstention. Id. Moreover, the
irreparable harm facing the petitioners in Gilliam III was based on a
concern that they would be "forced to endure [a] second trial before
seeking to vindicate their constitutional rights at the federal level."
Gilliam III, 75 F.3d at 904. Unlike the petitioners in Gilliam III, the
Appellants in Nivens I had yet to undergo an initial trial and failed to
make "a showing of an immediate and irreparable constitutional
injury absent federal court intervention." Nivens I, 319 F.3d at 160;
see also United States ex rel. Stevens v. Circuit Court of Milwaukee
County, 675 F.2d 946, 948 (7th Cir. 1982) ("To try [petitioner] for the
same offense to which he pled guilty would violate the double jeop-
ardy clause but it would not flout [t]he policy of avoiding multiple tri-
als, which is the only objective of the double jeopardy clause that
cannot be adequately protected by appeal from (or collateral attack
on) a judgment of conviction in the second prosecution." (internal
citation and quotation marks omitted)).
We noted, however, that Appellants failed to make the requisite
showing in part because — by way of the North Carolina courts —
they still had "access to pretrial avenues in their current criminal pros-
ecutions whereby they may raise their constitutional contentions
before any double jeopardy injury could inure." Nivens I, 319 F.3d at
159. Moreover, we specifically reserved "the issue of whether a fed-
eral district court should exercise its jurisdiction over Appellants’
claim once they have exhausted North Carolina’s pre-trial proce-
dures." Id. at 160 n.13. Now that Appellants have exhausted their pre-
trial avenues, that issue is squarely before us.
8 NIVENS v. GILCHRIST
Notwithstanding our avoidance of this issue in Nivens I, we went
on to note that there likely was no danger of a double jeopardy viola-
tion, and thus concluded that Appellants failed to show "a ‘great’ or
‘substantial’ likelihood that they will suffer any constitutional depri-
vation." Id. at 160 (quoting Younger, 401 U.S. at 45; City of Los
Angeles v. Lyons, 461 U.S. 95, 111-12 (1983)). We based this conclu-
sion on our view that (1) it was "arguable whether the current version
of North Carolina’s drug tax constitutes criminal punishment," (2)
even assuming it did constitute a criminal penalty, "it is not clear that
the payment of the drug tax took place in a prior ‘proceeding,’" and
(3) "to the extent that the assessment of the drug tax is part of the cur-
rent prosecution, and not a separate proceeding, there likely is no dou-
ble jeopardy restriction." Id. at 160-61.5 Thus, we held:
None of this is to say that Appellants ultimately will not pre-
vail on their double jeopardy claim. It is only to say that
where the alleged double jeopardy violation is far from
clear, immediate, or irreparable, the important Younger pol-
icy of allowing the State to pursue its prosecution free from
federal court intervention outweighs Appellants’ interest in
having the double jeopardy issue resolved in a federal
forum.
Id. at 162.
This holding is not altered by the fact that Appellants utilized
North Carolina’s pre-trial procedures but failed to prevail on the mer-
its. Abstention does not suddenly become improper simply because
Appellants lost on the merits in the state court. See Nivens I, 319 F.3d
at 158 ("Simply put, an assertion that the North Carolina courts will
likely decide a constitutional issue in a way contrary to what Appel-
lants believe the Constitution mandates is not a sufficient basis to
avoid application of Younger abstention."). In other words, the key
question is whether the state allows for Appellants to raise their
5
The Supreme Court outlined these three factors in Hudson v. United
States, 522 U.S. 93 (1997), which held, among other things, that "only
the clearest proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty." Id.
at 100.
NIVENS v. GILCHRIST 9
objections, not whether the state agrees with those objections. See
Moore v. Sims, 442 U.S. 415, 425-26 (1979) (holding that a "federal
court should not exert jurisdiction if the plaintiffs had an opportunity
to present their federal claims in the state proceedings. The pertinent
issue is whether [the] constitutional claims could have been raised in
the pending state proceedings. . . . Certainly, abstention is appropriate
unless state law clearly bars that interposition of the constitutional
claims" (emphasis added and internal quotation marks and citations
omitted)).
As the district court recognized, the fact that Appellants were able
to present their claims and have them addressed in state court suffices
and continues to make federal intervention inappropriate. See (J.A. at
1428-29 ("The fact that Plaintiffs did not obtain the result they desired
from that process or the degree of review that they thought proper
does not negate the fact that the state court addressed their claim.").)
In addition, because we continue to believe that Appellants’ case is
distinguishable from Gilliam III and Appellants fail to show a clear,
immediate, or irreparable double jeopardy violation, abstention
remains the proper course of action for the district court with respect
to Appellants’ claims for declaratory and injunctive relief. See Com-
monwealth of Va. v. Kelly, 29 F.3d 145, 147-48 (4th Cir. 1994)
("There being little, if any, likelihood that Kelly can succeed on the
merits of his federal double jeopardy claim, and the public interests
weighing heavily in favor of the Commonwealth’s ability to pursue
its criminal proceedings free of federal court intervention, the district
court erred in staying Kelly’s [state criminal trial.]" (citations omit-
ted), quoted in Nivens I, 319 F.3d at 162.).
C.
Appellants next argue that even if the decision to abstain was cor-
rect, the district court "misperceived the concept of abstention, view-
ing it as abdication of federal district court jurisdiction rather than
postponement of its exercise." (Appellants’ Br. 20.) Appellants con-
tend that this misperception caused the district court to err in dismiss-
ing the case with prejudice, when the proper course would have been
to dismiss without prejudice or stay the federal court proceedings
until the completion of the state court proceedings. We disagree.
10 NIVENS v. GILCHRIST
Appellants’ argument relies on a number of Supreme Court deci-
sions, including England v. Louisiana State Bd. of Med. Examiners,
375 U.S. 411 (1964), Am. Trial Lawyers Ass’n. v. New Jersey
Supreme Court, 409 U.S. 467 (1973)(per curiam), and Exxon Mobile
Corp. v. Saudi Basic Industries Corp., 125 S.Ct. 1517 (2005), for its
contention that the district court should have retained jurisdiction over
its case. These decisions, however, are inapposite to the case here.
In England, the district court abstained from hearing a group of
chiropractors’ challenge to the Louisiana Medical Practices Act
because it was unclear under state law whether the act applied to chi-
ropractors. 375 U.S. at 413. The plaintiffs then litigated their claims
and lost on the merits in state court before returning to the federal dis-
trict court, which dismissed the action and told the plaintiffs that if
they were not satisfied with the state court’s resolution of their claim,
they must appeal that decision to the United States Supreme Court.
Id. at 414-15. The Supreme Court reversed, holding that "abstention
does not, of course, involve the abdication of federal jurisdiction, but
only the postponement of its exercise." Id. at 416. As to the argument
that the plaintiffs could instead petition the Supreme Court for a writ
of certiorari, the Supreme Court noted that was "an inadequate substi-
tute for the initial District Court determination . . . to which the liti-
gant is entitled to in the federal courts." Id.
In American Trial Lawyers, a group of lawyers brought an action
seeking to declare New Jersey’s maximum contingent fee rule uncon-
stitutional. 409 U.S. at 467. The district court dismissed the suit
because it found that the issue was primarily one of state law. Id. at
468. The Supreme Court again enunciated the principle that absten-
tion does not involve the abdication of federal jurisdiction, but instead
its postponement, stating that "a dismissal on grounds of abstention
so as to permit a state court to pass on an issue of state law must not
be with prejudice. The proper course is for the District Court to retain
jurisdiction pending the proceedings in the state courts." Id. at 469
(citations omitted).
In Exxon, Saudi Basic had sued Exxon in state court, seeking a
declaratory judgment that certain licensing charges were proper.
Exxon, 125 S.Ct. at 1525. Exxon then filed suit in federal court while
also asserting as counterclaims in state court the same claims it made
NIVENS v. GILCHRIST 11
in federal court. Id. Saudi Basic filed a motion to dismiss the federal
claims, which was denied by the district court. Id. While Saudi’s
appeal of the denial of its motion to dismiss was pending, the state
case proceeded to trial and Exxon was awarded significant damages.
Id. The Third Circuit held that the state court’s judgment divested fed-
eral courts of jurisdiction over the case. Id. at 1525-26. The Supreme
Court reversed, holding that although Exxon’s federal claims might
be barred by preclusion doctrines, the state court’s judgment could
not prevent a federal court’s exercise of subject matter jurisdiction. Id.
at 1527.
Appellants’ reliance on these cases is misplaced because none of
the decisions concerned the relevant doctrine here, which is of course
Younger abstention. First, Exxon concerned the proper application of
the Rooker-Feldman doctrine, not Younger abstention. See Exxon,
125 S. Ct. at 1526-27 (holding that the Rooker-Feldman doctrine is
limited to complaints "of an injury caused by the state-court judgment
and seeking review and rejection of that judgment" and that federal
district courts lack jurisdiction to hear such claims because the
Supreme Court is vested with exclusive jurisdiction of such claims);
see also Davani v. Va. Dep’t of Transp., 434 F.3d 712 (4th Cir. 2006)
(explaining the Rooker-Feldman doctrine and Exxon’s clarification of
that doctrine). In fact, the Supreme Court explicitly recognized that
while Rooker-Feldman does nothing to bar a federal court from
asserting jurisdiction over a properly invoked concurrent suit,
"[c]omity or abstention doctrines may, in various circumstances, per-
mit or require the federal court to stay or dismiss the federal action
in favor of the state-court litigation." Exxon, 125 S. Ct. at 1527. Thus,
Exxon has no bearing on the propriety of the district court’s dismissal
here.
England and American Trial Lawyers, on the other hand, concern
abstention, but not Younger abstention. Rather, these cases concern
Pullman abstention. See RR Comm. of Tex. v. Pullman Co., 312 U.S.
496 (1941). Pullman abstention requires federal courts to abstain from
deciding an unclear area of state law that raises constitutional issues
because state court clarification might serve to avoid a federal consti-
tutional ruling. England detailed the proper procedure for federal
courts to follow in Pullman cases: federal courts should retain juris-
diction over the case, but stay the proceedings so that state courts can
12 NIVENS v. GILCHRIST
rule on the state law question. England, 375 U.S. at 416. If the state
court fails to resolve the issue, however, the parties may then return
to federal court for a ruling on the constitutional issue.6
Unlike the prototypical Younger case, Pullman cases do not
involve a pending state court criminal action. For example, Pullman
abstention is appropriate when a plaintiff brings a federal case that
requires the federal court to interpret an unclear state law. Pullman,
312 U.S. at 498-99. Exercising Pullman abstention, the federal court
then stays the proceeding (or certifies the question) and directs the
plaintiff to first press his claim in state court. Id. at 501-02. Younger
cases, on the other hand, typically involve claimants who come to
federal court in an attempt to enjoin their pending state criminal pros-
ecutions. Younger, 401 U.S. at 38-39. Younger exists to avoid an
unnecessary intrusion into state proceedings and prosecutions,
whereas Pullman exists in order to allow state courts to resolve com-
plicated issues of state law. Thus, Younger allows for the state court
to decide federal constitutional issues, whereas Pullman reserves
those issues for federal court review, when necessary.
Because Younger is in part based on the idea that a state court is
equally competent in deciding federal constitutional issues when
faced with a pending prosecution, Younger does not contemplate
those issues returning to federal court. See Lawrence H. Tribe, Ameri-
can Constitutional Law, § 3-30, at 202 n.5 (2d ed. 1988) ("The effect
of the Younger rules, then, is even more drastic than that of an admin-
istrative exhaustion requirement, . . . which allows ultimate resort to
a federal forum."). Moreover, Younger requires state courts to have
adequate procedures in place for the raising of federal constitutional
claims, and once those claims are heard by the state court, a federal
district court will often be precluded from considering the claims on
the merits. See 28 U.S.C.A. § 1738 (West 1994) (providing that the
judicial proceedings of a state court "shall have the same full faith and
credit in every court within the United States and its Territories and
6
Pullman abstention serves two primary goals: (1) avoiding constitu-
tional questions when their resolution is unnecessary, and (2) allowing
state courts to decide issues of state law. See Pullman, 312 U.S. at 500.
Younger abstention, on the other hand, is based on notions of equity and
comity. Younger, 401 U.S. at 43-44.
NIVENS v. GILCHRIST 13
Possessions as they have by law or usage in the courts of such State
. . . from which they are taken"); cf. Moses H. Cone Mem. Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 10 (1983) (noting in a Colorado
River abstention case that where "a stay of the federal suit pending
resolution of the state suit meant that there would be no further litiga-
tion in the federal forum; the state court’s judgment on the issue
would be res judicata . . . [and the] stay order amounts to a dismissal
of the suit").
Accordingly, Younger "contemplates the outright dismissal of the
federal suit, and the presentation of all claims, both state and federal,
to the state courts." Gibson v. Berryhill, 411 U.S. 564, 577 (1973); see
also Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that where
there are adequate state procedures, "the principles which underlie
Younger call for dismissal of the action"); San Remo Hotel v. City &
County of San Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998),
affirmed by 125 S.Ct. 2491 (2005) ("Unlike Pullman abstention,
Younger abstention requires dismissal of the federal claim for injunc-
tive relief, not a stay."); Juluke v. Hodel, 811 F.2d 1553, 1556 (D.C.
Cir. 1987) ("Younger is not merely a principle of abstention; rather,
the case sets forth a mandatory rule of equitable restraint, requiring
the dismissal of a federal action that seeks to enjoin an ongoing prose-
cution in a state criminal proceeding." (internal quotation marks omit-
ted)); Zalman v. Anderson, 802 F.2d 199, 207 n.11 (6th Cir. 1986)
("Younger abstention requires dismissal of the complaint rather than
retention of jurisdiction as is the case under Pullman abstention.").
Thus, where the relief being sought is equitable, as it always is in
Younger cases when a criminal defendant seeks to enjoin a state pros-
ecution, "federal courts . . . have the power to . . . decline to exercise
jurisdiction altogether by either dismissing the suit or remanding it to
state court." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721
(1996).
Because the outright dismissal of Appellants’ declaratory and
injunctive claims was proper, the only remaining question is whether
the district court erred in dismissing the claims with prejudice. We
conclude that it did not.7
7
We note, however, that the district court’s conclusion that it "lack[ed]
subject matter jurisdiction" was technically incorrect. (J.A. at 1426.)
14 NIVENS v. GILCHRIST
We arrive at this conclusion because a district court abstaining
under Younger is not retaining jurisdiction, but rather refusing to take
jurisdiction over the question of whether to enjoin the pending prose-
cution. See Bridges v. Kelly, 84 F.3d 470, 475 n.7 (D.C. Cir. 1996)
(describing the district court’s dismissal without prejudice as "curi-
ous" because "it seems clear . . . that appellant’s complaint was being
fully removed from the District Court’s jurisdiction pursuant to the
teachings of Younger and its progeny"). Thus, when a district court
abstains from a case based on Younger, it should typically dismiss the
case with prejudice; not on the merits, see Greening v. Moran, 953
F.2d 301, 304 (7th Cir. 1992) (holding that "it is not appropriate to
address the merits in a case to which Younger applies" because "[t]o
say that abstention is in order . . . is to say that federal courts should
not address the merits, period"), but instead because the court is
denied the equitable discretion ever to reach the merits.8 See Lui v.
Comm’n on Adult Entm’t of Del., 369 F.3d 319, 327 (3d Cir. 2004)
(holding that "a Younger abstention stay requires a dismissal with
prejudice of the federal suit").
Younger abstention "does not arise from lack of jurisdiction in the Dis-
trict Court, but from strong policies counseling against the exercise of
such jurisdiction where particular kinds of state proceedings have already
been commenced." Ohio Civil Rights Comm’n v. Dayton Christian Sch.,
Inc., 477 U.S. 619, 626 (1986). The district court error, however, was
more semantic than substantive because the effect of dismissal on
grounds of abstention is the same.
8
We note that there are exceptions to this rule. For example, in Nivens
I, Appellants claimed that North Carolina’s pretrial procedures were not
capable of affording them adequate protection. When encountering such
a claim, a district court may properly decide to invoke Younger, but dis-
miss the case without prejudice thus allowing the plaintiffs to refile in
district court if in fact the state does deny them adequate protection. That
was the basis for our statement in Nivens I that "Appellants must raise
their contentions in their current prosecution and appeal any undesirable
decision before a federal district court asserts jurisdiction." Nivens I, 319
F.3d at 159-60. In this case, however, now that Appellants have availed
themselves of North Carolina’s pretrial procedure and it is clear that
North Carolina provided Appellants with adequate protection, there is no
possibility of a future meritorious federal claim to enjoin their pending
prosecution.
NIVENS v. GILCHRIST 15
We, therefore, affirm the district court’s dismissal with prejudice.9
Appellants raised their double jeopardy objection in their state prose-
cution but did not prevail on it. If they are convicted, they may appeal
that conviction in North Carolina on double jeopardy grounds. If the
North Carolina Supreme Court affirms their conviction, Appellants
may then seek certiorari review in the United States Supreme Court.
See 28 U.S.C. § 1257 (West 1993) (providing that the Supreme Court
may review the "[f]inal judgments or decrees rendered by the highest
court of a State in which review of a decision could be had"). If their
hypothetical conviction is not overturned at that point, they may then
file a motion for appropriate relief and, depending on the resolution
of that motion, a habeas petition. See 28 U.S.C.A. § 2254 (West
1993). What Appellants may not do, however, is again ask a federal
district court to enjoin their pending prosecution because it violates
the Double Jeopardy Clause.
III.
We turn now to Appellants’ claims for monetary damages against
Gilchrist in both his official and individual capacities. The district
court’s order appears to have dismissed Appellants’ entire complaint
on grounds of Younger abstention. It was improper, however, to rely
on the Younger doctrine to dismiss Appellants’ damages claims. We
conclude, however, that the claims were barred against Gilchrist in his
official capacity by the Eleventh Amendment and barred against him
in his individual capacity by the doctrine of prosecutorial immunity.
Thus, dismissal was proper.
We have held that "Younger does not invariably require dismissal
of § 1983 damage actions." Suggs v. Brannon, 804 F.2d 274, 279 (4th
Cir. 1986). One of the principles underlying Younger is that it is
unnecessary for a federal court to enjoin a pending prosecution or
declare a statute unconstitutional because a state court may itself
9
Nothing in this opinion is meant to suggest or even remotely imply
that a Younger dismissal is a judgment on the merits for purposes of state
res judicata law. As we explained in the text, a Younger dismissal means
that the party may not again file the same claim for injunctive relief in
federal court; but a Younger dismissal is plainly not a merits-based judg-
ment.
16 NIVENS v. GILCHRIST
make either of those judgments in response to a defendant’s objec-
tions during prosecution. State criminal proceedings do not, however,
allow for claims of money damages by criminal defendants — such
a claim is simply not available. Therefore, a "District Court has no
discretion to dismiss rather than to stay claims for monetary relief that
cannot be redressed in the state proceeding." Deakins v. Monaghan,
484 U.S. 193, 202 (1988). Accordingly, the district court here erred
in dismissing Appellants’ damages claims pursuant to the Younger
doctrine.
On appeal, North Carolina defends the district court’s dismissal
under different reasoning, asking us to affirm the dismissal because
Appellants’ claims for damages were barred by the Eleventh Amend-
ment, prosecutorial immunity, and qualified immunity.10 See Blum v.
Bacon, 457 U.S. 132, 137 n.5 (1982) ("It is well accepted . . . that
without filing a cross-appeal . . . , an appellee may rely upon any mat-
ter appearing in the record in support of the judgment below.");
Blackwelder v. Millman, 522 F.2d 766, 771-72 (4th Cir. 1975) (noting
that a party prevailing below "may support the judgment by urging
any theory, argument, or contention which is supported by the record,
even though it was specifically rejected by the lower court" (internal
quotation marks omitted)). We agree that Appellants’ claims for dam-
ages are plainly barred by (1) the Eleventh Amendment and (2) the
doctrine of prosecutorial immunity.
A.
The Eleventh Amendment states: "The judicial power of the United
States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citi-
zens of another State or by Citizens or Subjects of any Foreign
States." U.S. Const. amend. XI. The Amendment has been read to
make "an unconsenting State . . . immune from suits brought in fed-
eral courts by her own citizens as well as by citizens of another
State." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
10
North Carolina’s motion to dismiss contended that Appellants’
claims for damages were barred because of immunity.
NIVENS v. GILCHRIST 17
Here, Appellants made a claim for monetary damages against Gil-
christ in his official capacity. Such a claim, in effect, is against the
governmental entity employing Gilchrist. See Kentucky v. Graham,
473 U.S. 159, 166 (1985) (noting that the government entity is "the
real party in interest" in an official capacity suit). Thus, "when the
action is in essence one for the recovery of money from the state, the
state is the real, substantial party in interest and is entitled to invoke
its sovereign immunity from suit even though individual officials are
nominal defendants." Ford Motor Co. v. Dep’t of Treasury, 323 U.S.
459, 464 (1945), overruled on other grounds by Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002). In determining
whether Gilchrist is entitled to Eleventh Amendment immunity, we
"must first establish whether [North Carolina’s] treasury will be
affected by the law suit. If the answer is yes, [Gilchrist] is immune
under the Eleventh Amendment." Harter v. Vernon, 101 F.3d 334,
340 (4th Cir. 1996).
The answer to this question here is clear. The North Carolina Con-
stitution provides for creation of prosecutorial districts and notes that
the district attorney shall "be responsible for the prosecution on behalf
of the State of all criminal actions." N.C. Const. art. IV, § 18. The dis-
trict attorney prosecutes "in the name of the State all criminal actions
and infractions requiring prosecution" and is undoubtedly a state offi-
cial. N.C. Gen. Stat. Ann. § 7A-61 (LexisNexis 2003). Most impor-
tant, North Carolina must pay "a final judgment awarded in a court
of competent jurisdiction against a State employee." N.C. Gen. Stat.
Ann. § 143-300.6 (LexisNexis 2003). Thus, North Carolina’s treasury
would be affected by the official capacity suit against Gilchrist and
he is accordingly immune in his official capacity from suit under the
Eleventh Amendment. See Lynn, 134 F.3d at 587 (applying Eleventh
Amendment and barring suit against North Carolina state officials in
drug tax case). We therefore affirm the dismissal of Appellants’ suit
against Gilchrist in his official capacity. See Puerto Rico Adqeduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (not-
ing that the Eleventh Amendment’s "withdrawal of jurisdiction effec-
tively confers an immunity from suit").
B.
Appellants also named Gilchrist as a defendant in his individual
capacity, a claim to which the Eleventh Amendment does not apply.
18 NIVENS v. GILCHRIST
In this capacity, however, Gilchrist is entitled to absolute prosecu-
torial immunity. In Imbler v. Pachtman, the Supreme Court held "that
in initiating a prosecution and in presenting the States’s case, the
prosecutor is immune from a civil suit for damages under § 1983."
424 U.S. 409, 430 (1976). The Court explained that prosecutors
should be afforded absolute immunity when their "activities were inti-
mately associated with the judicial phase of the criminal process."
Id.
Here, Appellants have been indicted and face prosecution. Their
theory of damages is based on the pain and suffering caused by their
indictment and pending prosecution, allegedly in violation of their
double jeopardy rights. Appellants do not, however, argue that Gil-
christ’s actions fell outside of his traditional prosecutorial duties. For
example, their complaint does not suggest that Gilchrist fabricated
evidence. See Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993). Nor
do they contend that Gilchrist violated their rights while undertaking
administrative or investigatory activities. See id. at 273 ("A prosecu-
tor’s administrative duties and those investigatory functions that do
not relate to an advocate’s preparation for the initiation of a prosecu-
tion or for judicial proceedings are not entitled to absolute immu-
nity."); Kalina v. Fletcher, 522 U.S. 118, 126 (1997) (noting same).
Rather, Appellants seek damages from Gilchrist because of his initia-
tion of criminal charges against Appellants following their payment
of the drug tax. "[A]cts undertaken by a prosecutor in preparing for
the initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State, are entitled to the
protections of absolute immunity." Buckley, 509 U.S. at 273. There
is no doubt that the actions complained of in this case form the
essence of Gilchrist’s prosecutorial duties. Thus, he is plainly
afforded absolute immunity from Appellant’s claim for damages.
Accordingly, we affirm the district court’s dismissal of Appellants’
claims. See Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982) (noting
that "the essence of absolute immunity is its possessor’s entitlement
not to have to answer for his conduct in a civil damages action").
IV.
For the reasons stated herein, we affirm the district court’s dis-
missal with prejudice.
AFFIRMED