Pompey v. Broward County

United States Court of Appeals,

Eleventh Circuit.

No. 95-4214.

Charles POMPEY; Richard Atlas; James Edwards; James Peters;
Larry Lashbrook, personally and as friend of John Lashbrook and
David Lashbrook, minors, individually and on behalf of all others
similarly situated, Plaintiffs-Appellants,

v.

BROWARD COUNTY and Jack Osterholt, in his capacity as
Administrator of Broward County; Broward County Support
Enforcement Division, a division of Defendant Broward County; Judy
Fink, individually and in her official capacity as Director of
Support Enforcement Division; Dale Ross, Chief Judge, Broward
County Circuit Court; Estella Moriarty, C. Lavon Ward, Robert L.
Andrews; Broward County Circuit Judges; and Jane and/or John
Does, certain unnamed judges of the Family Division of the Broward
County Circuit Court, in their official capacities, Defendants-
Appellees.

Sept. 26, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6019-C-WJZ), William J. Zloch, Judge.

Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit
Judge.

CARNES, Circuit Judge:

This case stems from Broward County, Florida's "Daddy

Roundups," which are part of an effort in that county to force

non-custodial parents to pay their past due child support

obligations. The plaintiffs are five fathers who already have

been, and who allege that they are also likely in the future to be,

ordered incarcerated by the Broward County Circuit Court for

failure to pay child support. They brought this 42 U.S.C. § 1983

suit against: (1) the Broward County Support Enforcement Division

(the "Support Division"), Broward County, and its administrator,

Jack Osterholt in his official capacity (collectively, the "County
defendants"); (2) the director of the Support Division, Judy Fink

in her official and individual capacity; and (3) the family

division judges of the Broward County Circuit Court (the "defendant

judges").

The plaintiffs claim that the defendants' practices during the

"Daddy Roundups" are unconstitutional because indigent fathers are

not advised of their right to court-appointed counsel, are not

provided with court-appointed counsel, and are not given a

meaningful opportunity to be heard during the "cursory" contempt

hearings. The plaintiffs seek various forms of equitable relief

and damages.

The defendant judges and the County defendants moved to

dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or (c), and

the district court granted that motion. It also granted summary

judgment in favor of Ms. Fink, the director of the Support

Division, on grounds of absolute, or alternatively, qualified

immunity. The plaintiffs appeal those judgments.
I. BACKGROUND

Because we decide this case as to all defendants based upon

the complaint, we take the facts alleged in the complaint to be

true and construe them in the light most favorable to the

plaintiff. E.g., ICA Constr. Corp. v. Reich, 60 F.3d 1495, 1497

(11th Cir.1995). According to the plaintiffs' allegations, the

defendants regularly conduct "Daddy Roundups," in which parents who

are allegedly in arrears on their child support payments are

brought into court for civil contempt hearings. A large number of

contempt cases are processed each day, with the frequent result
being that less than five minutes is spent on any given case.

Sometimes faulty or insufficient evidence is presented by Broward

County with regard to the amount in arrears. The court does not

inform the appearing parents of a right to court-appointed counsel,

and Broward County "actively dissuades" indigent parents from

requesting court-appointed counsel. Although it is required by

Florida law to do so, the court does not usually make a

determination regarding whether the parent who is being held in

contempt is indigent. As a result, indigent parents are imprisoned

even though they are unable to make their child support payments.

No records of the contempt hearings are made. Parents who are held

in contempt for failure to make child support payments may

terminate their jail sentences either by paying the amount in

arrears or by remaining in jail for 179 days.

The plaintiffs—Charles Pompey, Richard Atlas, James Edwards,

James Peters, and Larry Lashbrook—were all held in contempt for

failure to pay child support. At least one of the five plaintiffs,

Mr. Edwards, and possibly another, Mr. Pompey, failed to appear at

their contempt hearings, and their cases were adjudicated by

default. All of the plaintiffs allege that they were not informed

prior to being held in contempt that they were facing long periods

of incarceration, or of any right to court-appointed counsel. They

also allege that the court failed to make an affirmative finding of

their ability to pay the amount in arrears.1

1
Plaintiff Charles Pompey was held in contempt in May 1993,
and the court set a purge amount of $22,100.00. Plaintiff James
Edwards was held in contempt in May 1993, and the court set a
purge amount of $1,352.00. Plaintiff James Peters was held in
contempt in November 1990, and the court set a purge amount of
 None of the plaintiffs alleged at their contempt hearings that

they were indigent at the time of their hearings. Even so, one of

the plaintiffs, Mr. Pompey, successfully filed a petition for a

writ of habeas corpus with the Florida District Court of Appeals.

Pursuant to Mr. Pompey's petition, the Florida District Court of

Appeals instructed the circuit court to hold an evidentiary hearing

to determine Mr. Pompey's ability to pay his purge amount. As a

result of that hearing, the trial court reduced the purge amount

from $22,100.00 to $212.00.

None of the other plaintiffs filed either direct appeals or

habeas petitions in the Florida courts concerning their

incarceration for contempt. Instead, the plaintiffs filed this 42

U.S.C. § 1983 action, in which they contend that their contempt

hearings violated the Sixth and Fourteenth Amendments to the United

States Constitution because: (1) the court failed to inform them

of their right to court-appointed counsel, and to appoint such

counsel for indigent fathers, and (2) the court failed to provide

them with due process at their civil contempt hearings by relying

on faulty and insufficient evidence with regard to the amount in

arrears, spending insufficient amounts of time on each case, and

failing to keep records of each hearing.

The plaintiffs sought: (1) injunctive relief and

compensatory damages against the Support Division; (2) declaratory

and injunctive relief against the defendant judges; (3)

$5,598.11. Plaintiff Richard Atlas was held in contempt in
August 1992, and the court set a purge amount of $5,260.00.
Plaintiff Larry Lashbrook was held in contempt in August 1989,
and the court set a purge amount of $1,715.00.
compensatory damages against Broward County; and (4) compensatory

and punitive damages against Judy Fink in her individual capacity.2
The County defendants moved, pursuant to Fed.R.Civ.P.

12(b)(6), to dismiss the action for failure to state a claim, or

alternatively, for judgment on the pleadings, pursuant to

Fed.R.Civ.P. 12(c). That motion included a contention that Ms.

Fink was entitled to either absolute or qualified immunity. The

district court granted the County defendants' motion, on grounds

that they were not proper defendants because they neither had the

duty nor the authority to appoint counsel to indigent parents, or

to conduct the contempt hearings. The district court alternatively

held that the claims against the County defendants should be

dismissed based upon the Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971), abstention doctrine. [Op. at 3737]

The court also held that Ms. Fink was entitled to absolute

immunity, or alternatively, qualified immunity.

The defendant judges moved to dismiss the claims against them

2
Because the Support Division is a division of Broward
County, we treat the claim against it as a claim against the
County. See Fla.Stat.Ann. § 125.15 (West 1988 & Supp.1996);
Dean v. Barber, 951 F.2d 1210 (11th Cir.1992).

In addition, to the extent that the plaintiffs brought
a § 1983 claim against Jack Osterholt, in his official
capacity as administrator of Broward County, and against
Judy Fink, in her official capacity as director of the
Support Division, we treat those claims as claims against
the County. See Kentucky v. Graham, 473 U.S. 159, 166, 105
S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) ("As long as the
government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity.")
on Rooker-Feldman grounds.3 Although the district court rejected

the Rooker-Feldman contention, it granted the motion to dismiss on

grounds that it should abstain from hearing the claims against the

defendant judges based upon the Younger abstention doctrine.

The plaintiffs timely filed this appeal, challenging all of

the court's judgments.
II. DISCUSSION

The plaintiffs contend that: (1) the Younger abstention

doctrine does not apply to their claims against the defendant

judges; (2) the County defendants were proper defendants and

therefore the claims against them should not have been dismissed;

and (3) Ms. Fink was not entitled either to absolute or qualified

immunity. We will address the claims in that order.

A. Claims Against the Defendant Judges

The plaintiffs sought injunctive and declaratory relief

against the defendant judges. They asked the district court to

enjoin the defendant judges from: (1) incarcerating individuals at

contempt hearings without informing them of their right to counsel

generally, and to appointed counsel if they are indigent; and (2)

incarcerating individuals at contempt hearings without appointing

counsel to represent them if they are indigent. In addition, the

plaintiffs sought a declaratory judgment that the defendant judges'

practices of incarcerating individuals at a contempt hearing

without informing them of their right to counsel, without providing

3
See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482-84, 103 S.Ct. 1303, 1315-17, 75 L.Ed.2d 206 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149,
150, 68 L.Ed. 362 (1923).
them with court-appointed counsel, and without making an

affirmative finding of fact regarding an individual's ability to

pay are unconstitutional.

The district court dismissed the claims for equitable relief

against the defendant judges on Younger abstention grounds. In

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971), the Court "reaffirmed the "basic doctrine of equity

jurisprudence that courts of equity should not act ... when the

moving party has an adequate remedy at law and will not suffer
irreparable injury if denied equitable relief.' " O'Shea v.

Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-678, 38 L.Ed.2d 674

(1974) (quoting Younger, 401 U.S. at 43-44, 91 S.Ct. at 750). The

Younger abstention doctrine derives from "the vital consideration

of comity between the state and national governments," Luckey v.

Miller, 976 F.2d 673, 676 (11th Cir.1992) (" Luckey V "),4 which

4
The underlying controversy in the Luckey case spawned five
sets of opinions: Luckey v. Harris, 860 F.2d 1012 (11th
Cir.1988) ("Luckey I "), cert. denied, 495 U.S. 957, 110 S.Ct.
2562, 109 L.Ed.2d 744 (1990); Luckey v. Harris, 896 F.2d 479
(11th Cir.1989) (per curiam) ("Luckey II "); Harris v. Luckey,
918 F.2d 888 (11th Cir.1990) ("Luckey III "); Luckey v. Miller,
929 F.2d 618 (11th Cir.1991) ("Luckey IV "); and Luckey v.
Miller, 976 F.2d 673 (11th Cir.1992) ("Luckey V ").

In Luckey I, this Court reversed the district court's
dismissal of the case. The district court had held that it
lacked authority, on Eleventh Amendment grounds, to grant
the relief sought. In Luckey II, this Court denied the
defendants' suggestion of a rehearing en banc. Judge
Edmondson, joined by three other judges, filed a dissenting
opinion, in which he argued that the suggestion for a
rehearing en banc should have been granted. He contended
that the Luckey I panel's decision was wrong because it
"disregard[ed] considerations of comity and federalism that
underlie Younger." Luckey II, 896 F.2d at 479 (Edmondson,
J., dissenting).

In Luckey III, we granted the appellant-defendants'
Younger itself described as a "sensitivity to the legitimate

interests of both State and National Governments," Younger, 401

U.S. at 44, 91 S.Ct. at 750.

Since Younger, the Supreme Court and this Court have applied

and expanded upon that abstention doctrine. In O'Shea v.

Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-678, 38 L.Ed.2d 674

(1974), the Court, in an alternative holding, held that the

district court had properly declined to provide equitable relief to

plaintiffs who sought an injunction against various state

officials, including state judges. The plaintiffs had alleged that

the state judges had unconstitutionally: (1) set bond in criminal

cases without regard to the facts of a case; (2) set sentences

higher and imposed harsher conditions on black persons than white

persons; and (3) required black persons, when charged with

violations of city ordinances that carry fines and possible jail

sentences if the fines cannot be paid, to pay for a trial by jury.

Id. at 492, 94 S.Ct. at 674. The plaintiffs requested that the

federal district court enjoin those practices, and the district

court declined to do so.

In holding that the district court had properly declined to

petition for permission to appeal, thus allowing this Court
to review the district court's judgment on remand from
Luckey I. In Luckey IV, we held that the law of the case
had not precluded the district court on remand from Luckey I
from dismissing the complaint based upon Younger abstention
doctrine. Finally, in Luckey V, we summarily affirmed the
district court's dismissal on Younger abstention grounds,
and did so "on the basis of [the district court's] order,"
which we adopted in full and reprinted as an appendix.
Luckey V, 976 F.2d at 673. In doing so, we cited with
approval Judge Edmondson's dissent from Luckey II. See
Luckey V, 976 F.2d at 678-79.
enjoin those practices, the Supreme Court stated that " "the

principles of equity, comity, and federalism ... must restrain a

federal court when asked to enjoin a state court proceeding.' "

Id. at 499, 94 S.Ct. at 678 (quoting Mitchum v. Foster, 407 U.S.

225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972)); see also

Growe v. Emison, 507 U.S. 25, 32, 113 S.Ct. 1075, 1080, 122 L.Ed.2d

388 (1993) (stating that "principles of federalism and comity" must

underlie the discretion of courts of equity). The Supreme Court

emphasized that:

An injunction of the type contemplated by respondents ...
would disrupt the normal course of proceedings in the state
courts via resort to the federal suit for determination of the
claim ab initio, just as would the request for injunctive
relief from an ongoing state prosecution against the federal
plaintiff which was found to be unwarranted in Younger.

O'Shea, 414 U.S. at 501, 94 S.Ct. at 679. The Court held that "the

"periodic reporting' system [that] ... might be warranted would

constitute a form of monitoring of the operation of state court

functions that is antipathetic to established principles of

comity." Id. at 501, 94 S.Ct. at 679 (footnote omitted).

Relying on both Younger and O'Shea, we held in Luckey V, that

abstention was proper in a class action challenge to the adequacy

of Georgia's indigent criminal defense system. 976 F.2d at 673.

The plaintiffs had alleged unconstitutional systemic delays in the

appointment of counsel in their criminal cases, which allegedly led

to the inability of counsel to represent them adequately. They had

sought injunctive relief against the Governor of Georgia and all

Georgia judges who preside over the criminal trials of indigent

defendants. Specifically, the plaintiffs had requested a federal

injunction ordering the defendants to pay indigent-defense counsel
more, to provide counsel earlier in the criminal process, and to

provide more defense services and expert resources. Id. at 676.

Affirming the district court's denial of injunctive relief in

Luckey V, we rejected the plaintiffs' argument that Younger only

bars federal courts from restraining ongoing state court

prosecutions and does not bar prospective relief involving cases

that are not yet pending. Id. at 677-78. Instead, we held that

Younger required the federal district court to abstain because "a

decree of the sort requested by the plaintiffs would, inevitably,

interfere with every state criminal proceeding." Id. at 677. We

also noted that the district court's abstention did not leave the

plaintiffs without relief. The plaintiffs could raise their claims

in the Georgia state court, id., or could " "challenge the legality

of their custody via federal habeas corpus, subject, of course, to

prior exhaustion of state remedies.' " Luckey II, 896 F.2d at 482

(Edmondson, J., dissenting)5 (quoting Gardner v. Luckey, 500 F.2d

712, 715 (5th Cir.1974), cert. denied, 423 U.S. 841, 96 S.Ct. 73,

46 L.Ed.2d 61 (1975)); accord Luckey V, 976 F.2d at 677.

In Parker v. Turner, 626 F.2d 1 (6th Cir.1980), the Sixth

Circuit affirmed the district court's dismissal on Younger

abstention grounds of claims almost identical to the present ones.

The plaintiffs, who were indigent fathers under state court orders

to pay overdue child support, claimed that the state juvenile court

judges routinely denied fathers the right to counsel and the right

to due process during contempt hearings. As a result, they claimed

5
The position Judge Edmondson took in his dissenting opinion
in Luckey II became the position of this Court in Luckey V. See
supra n. 4.
many indigent fathers were held in contempt, even though they could

not afford to pay their purge amounts. The plaintiffs sought

declaratory and injunctive relief "to ensure that the juvenile

court followed basic due process." Id. at 2.

The Sixth Circuit held that the case was "legally

indistinguishable" from O'Shea, and thus the district court's

dismissal of the plaintiffs' requests for equitable relief was

proper. Id. at 7-8. It emphasized "the state's interest in

preserving the integrity of its contempt proceedings." Id. at 4.

The Sixth Circuit reasoned that it did not matter that the

plaintiffs only sought prospective equitable relief (rather than

attempting to relitigate past proceedings), because the plaintiffs'

requested relief constituted intrusive and undue federal

interference with state proceedings. Id. at 6.

More recently, in Hoover v. Wagner, 47 F.3d 845, 852 (7th

Cir.1995), the Seventh Circuit held that "broader equitable"

principles required the federal district court to dismiss a suit in

which the plaintiffs sought declaratory and injunctive relief

against a state judge and a city chief of police. Specifically,

the Hoover plaintiffs, who were two antiabortion protesters and a

journalist sympathetic to their cause, sought: (1) a declaration

from the federal district court that a state court injunction,

which purportedly limited the antiabortion protesters' speech, was

unconstitutional; and (2) an injunction against overenforcement of

the state injunction by the city police. Id. at 846. The Seventh

Circuit held that although neither the Younger doctrine nor the

Rooker-Feldman doctrine squarely applied to the facts before it,
the broader equitable principles espoused by both of those

doctrines did apply. See also Samuels v. Mackell, 401 U.S. 66, 69-

73, 91 S.Ct. 764, 766-68, 27 L.Ed.2d 688 (1971) (extending Younger

abstention doctrine to declaratory judgment actions).

The Seventh Circuit acknowledged in Hoover that many types of

injunctions are issued as a matter of course. Even so, it warned

that federal courts should proceed with caution when injunctive

relief is "sought to be applied to officials of one sovereign by

the courts of another." Hoover, 47 F.3d at 850. Such caution is
necessary because federal injunctions against state officials can

"impair comity, the mutual respect of sovereigns." Id. The court

likened the plaintiffs' claims for equitable relief to those

presented by the plaintiffs in O'Shea, and noted that in that case

the Supreme Court described the requested relief as "intrusive and

unworkable." Hoover, 47 F.3d at 851 (quoting O'Shea, 414 U.S. at

500, 94 S.Ct. at 678). We agree with the Seventh Circuit's

reasoning in Hoover.6

6
Although we reach the same conclusions as Judge Barkett
does in her special concurrence, there are several points on
which we disagree with that opinion. First, according to the
plaintiffs' allegations, which we must accept as true at this
stage, there is a pending state court proceeding. In particular,
the plaintiffs allege that there is "a Continuing Writ which
allows the Defendants to bring the Plaintiffs and members of the
Plaintiff class before the court for civil contempt for any child
support arrearage."

Second, we disagree with the position of the opinion
that O'Shea and Hoover were not based upon principles of
comity, as well as equity. In O'Shea, the Court discussed
at length the affronts to comity that would occur if the
plaintiffs were granted the requested federal equitable
relief. 414 U.S. at 500-02, 94 S.Ct. at 678-79. The Court
concluded that "[a]n injunction of the type contemplated by
the [plaintiffs] ... would disrupt the normal course of
proceedings in the state courts via resort to the federal
 The equitable relief requested by the plaintiffs in this case

is no less "intrusive and unworkable," and presents the same

"unseeml[y]" encroachments on important principles of federalism

and comity, see Hoover, 47 F.3d at 851, as did the relief requested

in Hoover and in O'Shea. The plaintiffs want the federal district

court to order state court judges to inform every parent who

appears at a contempt hearing that if he is indigent, he has a

suit for determination of the claim ab initio, just as would
the request for injunctive relief from an ongoing state
prosecution against the federal plaintiff which was found to
be unwarranted in Younger." Id. at 501, 94 S.Ct. at 679.
Similarly, in Hoover, the Seventh Circuit concluded that "it
would be an abuse of discretion, in light of the principles
of equity and comity that underlie Younger, to grant the
relief sought by the plaintiffs." 47 F.3d at 851 (emphasis
added).

Third, even if there were no ongoing state proceeding,
and even if O'Shea and Hoover did not deal with principles
of comity, we still would hold that principles of comity, as
well as equity, apply in this case. We would be required to
do so under the prior precedent rule in order to be
consistent with our decision in Luckey V. There, we
concluded that because of the "comity concerns of Younger
and O'Shea," 976 F.2d at 678, even the limited injunctive
relief requested by the plaintiffs "would inevitably set up
the precise basis for future intervention condemned in
O'Shea," id. at 679. Although we agree with the concurring
opinion that our decision in Ealy v. Littlejohn, 569 F.2d
219 (5th Cir.1978), like our decision in Luckey V, is
binding precedent, we disagree with the opinion's
interpretation of Ealy. Ealy did not even mention O'Shea,
and thus cannot be considered inconsistent with Luckey V's
holding that O'Shea is an extension of Younger. Ankenbrandt
v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468
(1992), which was issued before Luckey V and which the
concurring opinion contends does not support our reasoning,
explicitly states that even absent a pending state court
proceeding, Younger principles may still apply when there
are "important state interests" at stake. See id. at 705,
112 S.Ct. at 2216. In this case, as in O'Shea, "important
state interests" are at stake—namely, the "state's interest
in preserving the integrity of its contempt proceedings, as
well as its domestic relations cases," Parker v. Turner, 626
F.2d 1, 4 (6th Cir.1980) (citations omitted).
right to court-appointed counsel.7 They want the district court to

order state judges to appoint counsel to all indigent parents

appearing at a contempt hearing. The plaintiffs also want the

district court to order state judges to inquire specifically about

each parent's ability to pay the child support amount in arrears.

As to this last request, we doubt that the plaintiffs would be

satisfied if the district court simply ordered the state judges to

make such inquiries, because the plaintiffs themselves concede that

Florida law already requires the state judges to make such

inquiries. See Pompey Supp.Br. at 9 ("[C]ourts in child support

hearings are required to inquire into the parent's ability to pay

before the parent is incarcerated."); see also Andrews v. Walton,

428 So.2d 663, 666 (Fla.1983). Instead, it appears that what the

plaintiffs really want in this regard is for the district court

somehow to force the state judges to conduct a more "thorough

inquiry" into each parent's ability to pay, and somehow to force

the state judges to follow what plaintiffs perceive to be the

state's own laws and procedures.

Like the Hoover court, we think that "the difficulty of

framing a useful injunction, when considered in conjunction with

the affront to comity that such an injunction would constitute"

Hoover, 47 F.3d at 851, counsels against federal court

intervention. During oral argument, counsel for the plaintiffs so

much as acknowledged the inherent difficulty in framing the

7
At oral argument, the plaintiffs seemed to suggest that
they also wanted state courts ordered to appoint counsel for all
fathers who alleged that they were indigent at the time of the
contempt hearings, in order to assist them in proving their
indigency.
requested equitable relief when he struggled unsuccessfully to

provide us with the specifics of how the injunction he sought

should read.

Even if the district court were able to frame such an

injunction in a satisfactory way, it would be unwise to do so. It

would be unwise, because such an injunction would be "at once an

insult to the [state judges] ... and an empty but potentially

mischievous command to these officials to avoid committing any

errors." Hoover, 47 F.3d at 851. It would ensnare the federal

district court in relitigation of the state contempt proceeding

issues, which is the kind of mischief O'Shea warned against. See

O'Shea, 414 U.S. at 501, 94 S.Ct. at 679 ("An injunction of the

type contemplated by respondents ... would disrupt the normal

course of proceedings in the state courts via resort to the federal

suit for determination of the claim ab initio...."). If the

injunction plaintiffs seek were issued, any parent who was held in

contempt despite his alleged indigency could and probably would

seek relief in the federal district court on grounds that the state

judge had violated the federal injunction. And what would the

federal district court do? Would it make an independent

determination of that parent's indigency in order to determine if

the injunction had been violated? And if the district court

concluded that the injunction had been violated, what would it do

then? In his dissent in Luckey II, 896 F.2d 479 (11th Cir.1989),

which was ultimately adopted as the position of the Court in Luckey
V,8 Judge Edmondson, joined by three other judges of this Court,

8
See supra n. 4.
considered such a scenario, and stated:

When we embark on this new course, we must prepare to face
this unpleasant question: If a state judge does not obey a
district judge's injunction, are we willing to jail the state
judge for contempt? Avoidance of this unseemly conflict
between state and federal judges is one reason for O'Shea and
Younger.

Id. at 482; cf. Hoover, 47 F.3d at 851 ("[I]f a plaintiff were

erroneously convicted for violating the state court injunction,

would that put the prosecutor, the judge, and, if there were a

jury, the jury in contempt of the federal injunction?").

Those are some of the problems that would arise if the

federal district court were to arrogate to itself the role of

overseer of Broward County's child support enforcement proceedings.

Considerations of those problems vindicates the wisdom of the

Framers in reserving to only one federal court, the Supreme Court,

the authority to review state court proceedings. Neither federal

district courts nor federal courts of appeal may usurp the

authority and function of the Supreme Court and state appellate

courts to review state court proceedings. The state courts are

courts of equal dignity with all of the federal "inferior

courts"—to use the Framers' phrase—and state courts have the same

duty to interpret and apply the United States Constitution as we

do. If the state courts err in that respect, the remedy lies in

review by the Supreme Court, the same place a remedy may be found

if we err. Federal "inferior courts" have no more business issuing

supervisory injunctions to safeguard federal constitutional rights

in state court proceedings than state courts have issuing such

injunctions to safeguard federal constitutional rights in federal

court proceedings.
 Even so, the plaintiffs contend that the federal district

court should have granted their requested relief because of the

decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43

L.Ed.2d 54 (1975), upholding a federal district court's injunction

against state court judges. In Gerstein, the plaintiffs challenged

in the district court Florida's pretrial detention of persons

without a judicial determination of probable cause. They asked the

district court to issue an injunction, which would require a

judicial determination of probable cause, against several county

officials, including county judges. The Court upheld the district

court's judgment in favor of the plaintiffs on the merits and the

issuance of the requested injunction. The Court distinguished

Younger in a footnote, which stated that Younger did not apply

because the issue raised by the plaintiffs "could not be raised in

defense of the criminal prosecution," and thus presumably could not

be raised at all in the state courts. Id. at 107 n. 9, 95 S.Ct. at

860 n. 9; see also Erwin Chemerinsky, Federal Jurisdiction § 13.4,

at 755 n. 24 (1994).

Gerstein is distinguishable from this case. The

permissibility of federal equitable relief in Gerstein was based

upon the absence of an adequate state forum for raising the issue.

See Gerstein, 420 U.S. at 107 n. 9, 95 S.Ct. at 860 n. 9; see also

Parker v. Turner, 626 F.2d 1, 9 (6th Cir.1980). By contrast, in

this case, plaintiffs had state remedies available. The plaintiffs

could have raised their claims during their contempt hearings. If

unsuccessful, they could have appealed the adverse holdings to the

Florida District Court of Appeals, to the Florida Supreme Court,
and, ultimately, to the United States Supreme Court. See Robbins

v. Robbins, 429 So.2d 424 (Fla. 3d DCA 1983) (holding in case

almost identical to the allegations of the present case that the

plaintiffs were deprived of due process of law by cursory,

assembly-line contempt hearings). Alternatively, the plaintiffs

could have sought habeas corpus relief in the state court system.

One of the plaintiffs, Mr. Pompey, did successfully seek such

relief. Pursuant to his habeas petition, the Florida District

Court of Appeals instructed the circuit court to hold an

evidentiary hearing to determine Mr. Pompey's ability to pay his

purge amount, which resulted in the trial court reducing that

amount from $22,100.00 to $212.00. All of the plaintiffs could

have obtained state habeas relief, as Mr. Pompey did.

Notwithstanding the opportunities they had to raise their

claims through the state court system, the plaintiffs still insist

that they lacked a meaningful opportunity to be heard in the state

courts. In particular, they contend that the Florida Supreme

Court's decision in Andrews v. Walton, 428 So.2d 663 (Fla.1983),

forecloses them from raising their federal constitutional claims in

the Florida state courts. In Andrews, the court held that:

[T]here are no circumstances in which a parent is entitled to
court-appointed counsel in a civil contempt proceeding for
failure to pay child support because if the parent has the
ability to pay, there is no indigency, and if the parent is
indigent, there is no threat of imprisonment.

Id. at 666. Although Andrews demonstrates that Florida courts have

refused to provide court-appointed counsel in child custody

enforcement proceedings, we disagree with the conclusion that the

plaintiffs draw from that. Contrary to their contention, for
abstention purposes, whether a claim would likely be successful on

the merits in the state court is not what matters. Instead, what

matters is whether the plaintiff is procedurally prevented from

raising his constitutional claims in the state courts, from which

a certiorari petition can be filed seeking review on the merits in

the United States Supreme Court. See Moore v. Sims, 442 U.S. 415,

432, 99 S.Ct. 2371, 2382, 60 L.Ed.2d 994 (1979) (holding that the

federal plaintiff has burden to show "that state procedural law

barred presentation of [its] claims"); cf. Engle v. Isaac, 456

U.S. 107, 130, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) (in

federal habeas proceedings perceived futility on the merits does

not excuse failure to raise claim in state court). The plaintiffs

in Gerstein were procedurally prevented from making their claims;

the plaintiffs in this case were not.9 Accordingly, we reject the

plaintiffs' broad construction of Gerstein, which would make

Gerstein the exception that swallowed the rule of Younger and the

holding of O'Shea.10

For all of these reasons, the district court's judgment

denying equitable relief against the defendant judges is due to be

9
Even if we were to accept the plaintiffs' characterization
of an opportunity to be heard as focusing on the possibility of
success on the merits, rather than whether they had a procedural
opportunity to raise and adjudicate the claim, that argument
would apply only to their claim concerning court-appointed
counsel. It would not apply to their other claims, which they do
not argue would be foreclosed on the merits by Florida law.
10
As a last resort, the plaintiffs argue that even if
Younger and its progeny, rather than Gerstein, applies, we should
still issue the requested equitable relief under the
"extraordinary circumstances" exception to the Younger doctrine.
401 U.S. at 53-54, 91 S.Ct. at 755. However, the plaintiffs'
arguments in this regard are redundant, and merit no further
discussion.
affirmed.

B. Claims Against the County Defendants and Against Ms. Fink in Her
Individual Capacity

Still remaining for our review are the plaintiffs' claims

against the County defendants (Broward County and the Support

Division) and against Ms. Fink, the director of the Support

Division, in her individual capacity.11 The plaintiffs seek

equitable relief and compensatory damages from the County

defendants, and seek compensatory and punitive damages from Ms.

Fink.12 The district court dismissed the claims against the County

defendants on grounds that they were not "proper defendants," and

granted summary judgment in favor of Ms. Fink on absolute, and

alternatively, qualified immunity grounds.

The plaintiffs claim that the County defendants and Ms. Fink

have violated their Sixth and Fourteenth Amendment rights in
13
several ways. The plaintiffs allege that the Support Division and

Ms. Fink have violated their rights by: (1) discouraging

individuals from requesting court-appointed counsel; (2) referring

to incarceration as "punishment for contempt"; (3) submitting

faulty or insufficient evidence; and (4) allowing less than five

11
Although these claims were brought by only three of the
five plaintiffs—Mr. Peters, Mr. Atlas, and Mr. Lashbrook—we will
still refer to them as "the plaintiffs."
12
It is doubtful that federal district courts may dismiss
claims for damages under abstention principles. See Quackenbush
v. Allstate Ins. Co., --- U.S. ----, ----, 116 S.Ct. 1712, 1727-
28, 135 L.Ed.2d 1 (1996).
13
For purposes of clarity, we refer to the Support Division
as separate from the County in this discussion, even though, as
we stated supra n. 2, the Division is not a legal entity separate
from the County.
minutes to be spent on each case. Similarly, the plaintiffs allege

that Broward County has violated their rights by "permitting and

tolerating" the Support Division and Ms. Fink to engage in the

allegedly unconstitutional practices listed above. They also

allege that Broward County has violated their rights by failing to

appoint counsel to indigent fathers.

With regard to the plaintiffs' claims against the Support

Division and against Ms. Fink in her individual capacity, we hold

that those claims were due to be dismissed on grounds that they

failed to state a claim upon which relief may be granted. Even if

we assume that the plaintiffs' complaint has sufficiently alleged

that the plaintiffs were personally discouraged from seeking

court-appointed counsel and that it was their incarceration that

was referred to as "punishment for contempt," their claims are

still inadequate. The Constitution does not guarantee that someone

incarcerated in a contempt proceeding will not have their

incarceration referred to as "punishment for contempt." Similarly,

there is nothing in the Constitution that gives parents appearing

in child support contempt hearings a right not to be discouraged in

some vaguely stated fashion, from seeking court-appointed counsel,

even where they have such a right to counsel. In addition, because

it is the duty of the courts, rather than the Support Division or

Ms. Fink, to determine whether the evidence is sufficient to hold

a parent in contempt as well as to determine how much time to spend

on each case, see, e.g., Fla.Stat.Ann. § 61.14(5) (West 1988 &

Supp.1996); Fla.R.Jud.Admin., Rule 2.050(b) (West 1996);

Rodriquez v. Thermal Dynamics, Inc., 582 So.2d 805 (Fla. 3d DCA
1991), the plaintiffs fail to state a claim against the Support

Division and Ms. Fink based upon those allegations.14
For those reasons, we also hold that the plaintiffs' claim

against Broward County stemming from its "tolerance" of the above

practices of the Support Division and Ms. Fink fails to state a

claim upon which relief may be granted. Because the Support

Division and Ms. Fink did not violate the constitutional rights of

the plaintiffs, it follows that Broward County's permitting and

tolerating the Support Division's and Ms. Fink's practices did not

violate the constitutional rights of the plaintiffs, either. In

addition, Broward County had neither the duty nor the authority to

appoint counsel for the plaintiffs; that duty and authority was

the courts' alone. See, e.g., Hamill v. Wright, 870 F.2d 1032 (5th

Cir.1989) (holding in case similar to present one that only state

court has duty and authority to appoint counsel to indigent

parents, and that county has no authority over state courts).

Accordingly, the plaintiffs' claim in that regard were due to be

dismissed.

14
Alternatively, the plaintiffs' requests for equitable
relief against the Support Division were due to be dismissed on
Younger abstention grounds for reasons similar to those discussed
with regard to the defendant judges supra part II.A.

The district court held that Ms. Fink was entitled to
qualified immunity insofar as the claims were asserted
against her in her individual capacity, and that may well be
correct. However, in view of our conclusion that the claims
against her in both her individual and official capacities
are due to be dismissed for the reasons stated in this
opinion we need not reach the qualified immunity issue.
Therefore, we will vacate the district court's grant of
summary judgment on qualified immunity grounds to Ms. Fink
in her individual capacity and instruct the district court
to dismiss all of the claims against her in both her
capacities.
 III. CONCLUSION

We AFFIRM the district court's order of dismissal of the

claims against the County defendants and the defendant judges. We

VACATE the district court's grant of summary judgment to Ms. Fink
in her individual capacity, and REMAND with directions that the

district court dismiss all of the claims against her for the

reasons stated in this opinion.

BARKETT, Circuit Judge, specially concurring:

I concur fully in the majority opinion except as to the
majority's treatment of Younger abstention in Part IIA in upholding

the district court dismissal of the claims against the defendant

judges. I write separately to clarify that in my opinion Younger

does not apply here because there is no pending state proceeding.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971), the Supreme Court held that federal courts should abstain

from enjoining pending state criminal court proceedings. Id. at
53, 91 S.Ct. at 755. The Court's holding in Younger was based on

two principles: comity and equity. 401 U.S. at 44, 91 S.Ct. at

750. The first of these principles, and the most predominant in

Younger, is the notion of comity, which is "a recognition of the

fact that the entire country is made up of a union of separate

state governments" whose functions should be accorded respect.

This concept of "Our Federalism," which played a role in the

ratification of the Federal Constitution and is contained therein,

represents "a system in which there is sensitivity to the

legitimate interests of both State and National Governments, and in

which the National Government, anxious though it may be to
vindicate and protect federal rights and federal interests, always

endeavors to do so in ways that will not unduly interfere with the

legitimate activities of the States." Id., at 42-46, 91 S.Ct. at

750-51. Additionally, Younger noted "the basic doctrine of equity

jurisprudence 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." 401 U.S. at

43-44, 91 S.Ct. at 750;

The Supreme Court subsequently extended Younger abstention to

the civil context when important state interests are challenged,

see, e.g., Middlesex County Ethics Commission v. Garden State Bar

Assn., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Ohio

Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S.

619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), and when the relief

sought in federal court was declaratory, rather than injunctive in

nature. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d

688 (1971). But the Supreme Court has never applied Younger

abstention when no state proceeding was pending because the comity

concerns (though not necessarily the equity principles) that

underlie it simply are not implicated. See Ankenbrandt v.

Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 2216, 119 L.Ed.2d 468

(1992) ("Absent any pending proceeding in state tribunals,

therefore, application by the lower courts of Younger abstention

was clearly erroneous.");1 see also Doran v. Salem Inn, Inc., 422

1
I differ from the majority's reading of Ankenbrandt as
holding that Younger principles apply either when there is a
pending state proceeding or "important state interests" are
U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1974) (holding

that when there is no pending state proceeding, individuals may

receive a preliminary injunction because it does not disrupt the

state courts and because there is no available forum in which to

raise the constitutional claims); Hoover v. Wagner, 47 F.3d 845,

848 (7th Cir.1995) ("The [Younger] doctrine is inapplicable here

because none of the plaintiffs is [presently] being prosecuted for

anything."); Parker v. Turner, 626 F.2d 1, 10 (6th Cir.1980)

(Merritt, J., concurring) (stating that the existence of a pending
state proceeding is a crucial part of the Younger abstention

doctrine); 17A Wright, Miller & Cooper, § 4253, at 212 ("Younger

implicated. No prior case has so interpreted Younger abstention.
Younger principles apply when there is a pending state proceeding
and that proceeding implicates important state interests. See,
e.g., Middlesex County Ethics Committee v. Garden State Bar
Association, 457 U.S. 423, 431-32, 102 S.Ct. 2515, 2521, 73
L.Ed.2d 116 (1982); see generally 17A Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 4253, at 212 (2d ed. 1988).
Ankenbrandt itself so held. Ankenbrandt involved a diversity
action brought by a mother on behalf of her children alleging
physical and sexual abuse of the children by the children's
father (the mother's former husband) and the husband's female
companion. To support the majority's reading of Ankenbrandt,
therefore, Ankenbrandt necessarily would have to also be read as
holding that such "domestic relations" proceedings are not an
important state interest, because the Court holds in Ankenbrandt
that Younger principles do not apply. In fact, the Court in
Ankenbrandt merely determined whether there was a pending state
proceeding or not. When it determined there was not, the Court's
analysis ended with the holding that Younger did not apply,
stating that "[a]bsent any pending proceeding in state tribunals,
therefore, application by the lower courts of Younger abstention
was clearly erroneous." If the Court's holding were as the
majority says it is, finding that there was not a pending state
proceeding would not end the inquiry; the Court would then have
gone on to determine whether domestic relations is an "important
state interest," which it invariably is. The Court did not
embark on this second determination, however, and ended its
Younger analysis by concluding that Younger abstention did not
apply because there was no state proceeding.
v. Harris and its companion cases went to great pains to make it

clear that the rules there laid down applied only if there was a

prosecution pending in state courts at the time the federal

proceeding was begun."); Erwin Chemerinsky, Federal Jurisdiction

§ 13.3, at 736-37 (2d ed. 1994) ("The prevailing view in the lower

courts is that permanent injunctions are allowed in the absence of

ongoing state proceedings.... [T]he rationale of Younger is that

if there are state proceedings, constitutional claims should be

raised there. But if no such proceedings are pending, federal

court relief is appropriate."). Moreover, binding precedent in

this circuit holds that Younger does not apply when there is not a

pending state proceeding. Ealy v. Littlejohn, 569 F.2d 219, 232

(5th Cir.1978) ("when there will be no interruption of ongoing

state criminal proceedings, and thus no threat to proper

federal-state relations, Younger does not bar federal intervention

so long as the plaintiff can satisfy the requirements of federal

jurisdiction, and can demonstrate (i) exceptional circumstances and

(ii) that an injunction is necessary for adequate protection of

constitutional rights.").2
Because there is no pending state proceeding in this case, the

notions of comity and federalism on which Younger primarily relied

are not implicated here.3 Younger "Our Federalism" abstention,

2
Luckey V does not cite or attempt to distinguish this
circuit's prior precedent in Ealy. Nevertheless, the same prior
precedent rule on which the majority relies in arguing that
Luckey V controls our analysis here must apply with equal force
to Ealy.
3
Plaintiffs in the present case do allege that they are
under a continuing writ which allows the defendants to bring
plaintiffs before the court for civil contempt for any child
therefore, does not apply here. O'Shea v. Littleton, 414 U.S. 488,

499, 94 S.Ct. 669, 677-678, 38 L.Ed.2d 674 (1974); Ealy, 569 F.2d

at 233 ("[T]here was no state prosecution pending against these

plaintiffs when they instituted the present suit, thus making the

Younger holding inapplicable."); Luckey v. Harris, 896 F.2d 479,

479 (11th Cir.1989) (Edmondson, J., dissenting); Hoover, 47 F.3d

at 848; see also Chemerinsky § 13.3, at 748. Nevertheless, the

general equitable principles reiterated in Younger do apply here.

In applying these general equitable principles to the facts of

this case, I reach the same result the majority does. However, I

conclude that the district court properly dismissed plaintiffs

claims against the judges not because Younger abstention applies,

but because equitable relief is inappropriate here because the

plaintiffs lack the elements necessary for general equitable

relief: an inadequate remedy at law and irreparable injury.

Neither of these elements are present because the plaintiffs are

not barred from raising their claims during the course of any

future state court proceedings they may be involved in, and

challenging an adverse ruling through the state appeals process,

and invoking state and federal habeas avenues if they do not

otherwise succeed.4 Unlike in Ealy, therefore, where an injunction

issued because there was no interruption of ongoing state

support arrearage. Because a plaintiff would have to fail to pay
child support to again be brought before the court, I would not
consider such a writ to constitute an ongoing state proceeding
for Younger abstention purposes.
4
As did one of the plaintiffs in this case, Mr. Pompey, who
successfully filed a petition for a writ of habeas corpus with
the Florida District Court of Appeals that resulted in the
reduction of his purge amount from $22,100.00 to $212.00.
proceedings, exceptional circumstances were present, and an

injunction was necessary for adequate protection of constitutional

rights, here, the last requirement is not satisfied; an injunction

is not necessary for adequate protection of constitutional rights

because plaintiffs are not barred from raising their claims during

any future state court proceeding. See 569 F.2d at 232.

The Supreme Court recognized these principles in O'Shea. In

O'Shea, the Court held that the plaintiffs lacked standing to bring

their claim because it was speculative that they would again commit

a crime and be brought before the municipal court. But the Court

went on to state that, even if plaintiffs had standing (thereby

allowing the Court to reach the merits of the injunction sought),

it would not grant the injunctive relief plaintiffs requested. The

Court stated that, although Younger itself did not apply because

the plaintiffs did not allege any pending state proceedings against

them, general equitable principles recognized in Younger would

apply where a federal court is called upon to monitor the future

actions of a state court. Id. at 500.

The majority relies on Parker v. Turner, 626 F.2d 1 (6th

Cir.1980), for support for its application of Younger here. Parker

factually is similar to the present case, but Parker strains to

create a third extension of Younger abstention that applies where,

as in our case, no state proceeding is pending. As I stated

previously, the Supreme Court has never recognized such an

extension and, in Ankenbrandt, expressly rejected it. 504 U.S. at

704, 112 S.Ct. at 2215 ("[a]bsent any pending proceeding in state

tribunals, therefore, application by the lower courts of Younger
abstention was clearly erroneous.").

The majority also relies on Hoover v. Wagner, 47 F.3d 845, 852

(7th Cir.1995), to support its reasoning that Younger applies in

this case, but Hoover acknowledges that "the [Younger] doctrine is

inapplicable here because none of the plaintiffs is [presently]

being prosecuted for anything." Id. at 848. Hoover goes on to

uphold the dismissal on the "broader equitable principles"

reiterated in Younger, but not the comity and federalism principles

on which the Younger abstention doctrine is premised. In short,

like Hoover, my analysis would rest solely on general equitable

principles, to wit, because nothing prohibits plaintiffs from

raising their claims in a future state court proceeding, should one

arise, they lack the elements necessary for equitable relief: an

inadequate remedy at law and irreparable injury.