Case: 12-12267    Date Filed: 12/31/2012   Page: 1 of 8

                                                           [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-12267
                          Non-Argument Calendar
                        ________________________

                D. C. Docket No. 1:11-cv-00894-WHA-CSC


DENNIS HALL,
MARY GLANTON, et al.,
                                                           Plaintiffs-Appellants,

                                    versus

DOUGLAS ALBERT VALESKA,

                                                            Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       ________________________

                             (December 31, 2012)


Before MARCUS, KRAVITCH and EDMONDSON, Circuit Judges.


PER CURIAM:

     Plaintiffs Dennis Hall, Mary Glanton, Samuel Jackson, Vicky Allen Brown,
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and Freddie B. Russaw (“Plaintiffs”) -- African-American residents of Houston or

Henry Counties, Alabama, who have been excluded from jury service through the

use of peremptory strikes -- appeal the dismissal of their lawsuit against Douglas

Valeska, the District Attorney of Houston and Henry Counties,1 for failure to state

a claim. No reversible error has been shown; we affirm.

          In their complaint, Plaintiffs -- on behalf of themselves and a class of those

similarly situated -- alleged that Valeska was engaged in a pervasive and ongoing

practice of excluding qualified African-Americans from serving as jurors in

serious felony cases. Plaintiffs asserted five claims: (1) a claim under 42 U.S.C. §

1983 for violation of the Equal Protection Clause, (2) a claim for violation of 18

U.S.C. § 243, (3) a claim for violation of the Alabama Constitution, (4) a claim for

violation of Alabama state law, and (5) a claim for attorneys’ fees and costs under

42 U.S.C. § 1988.2

          Plaintiffs sought declaratory judgment and injunctive relief. They also

sought an order requiring Valeska to maintain records and data about (1) the racial



  1
   Plaintiffs also listed as defendants various unnamed Assistant District Attorneys who work under
Valeska’s direction and supervision. Our analysis of Plaintiffs’ claims against Valeska applies with
equal force to the claims against those unnamed defendants.
      2
    On appeal, Plaintiffs do not challenge the district court’s dismissal of their state law claims or
their claim for attorneys’ fees and costs; so those claims are abandoned. See Access Now, Inc. v.
Sw. Airlines Co., 

, 1330 (11th Cir. 2004).

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composition of the jury pool in each serious felony case, (2) the race of all venire

members stricken for cause or by peremptory strike, (3) the names of all cases in

which Batson3 violations are alleged, and (4) the identity of all attorneys involved

in cases in which Batson violations are alleged. Plaintiffs asked that Valeska be

required to file written reports every six months with a court-appointed monitor.

Plaintiffs also sought an order ensuring Plaintiffs “meaningful access to and

monitoring of jury selection in serious felony cases with notice of the empaneling

of juries in such cases and an opportunity for oversight and intervention if

Defendants’ discrimination continues.”

      The district court granted Valeska’s motion to dismiss. Relying on the

principles set forth in O’Shea v. Littleton, 

(1974), the district court

abstained from consideration of and dismissed Plaintiffs’ Equal Protection claim.

The district court then dismissed Plaintiffs’ claims under section 243 and for

attorneys’ fees, and the court declined to exercise supplemental jurisdiction over

Plaintiffs’ state law claims.

      On appeal, Plaintiffs challenge the district court’s dismissal of their Equal

Protection claim. “We review an abstention decision only for an abuse of

discretion.” 31 Foster Children v. Bush, 

, 1274 (11th Cir. 2003).

  3
   Batson v. Kentucky, 

(1986).

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      In the light of the teaching of O’Shea, the district court did not abuse its

discretion when it concluded that the declaratory and injunctive relief sought by

Plaintiffs was prohibited. In O’Shea, plaintiffs complained that the county

magistrate and judge had engaged in an ongoing pattern and practice of applying

the state criminal laws and procedures in a racially discriminatory manner. The

O’Shea plaintiffs sought to enjoin the alleged conduct from occurring in future

criminal trials. 

. The Court of Appeals concluded that

injunctive relief -- including a requirement for periodic data reports -- might be

appropriate. 

      The Supreme Court reversed, explaining that such an order “seems to us

nothing less than an ongoing federal audit of state criminal proceedings which

would indirectly accomplish the kind of interference that Younger v. Harris, [

(1971)], . . . sought to prevent.” 

Court said that such

“periodic reporting” “would constitute a form of monitoring of the operation of

state court functions that is antipathetic to established principles of comity.” 

such an injunction “would disrupt the normal course of

proceedings in the state courts via resort to the federal suit for determination of the

claim ab initio.” 

that “[a] federal court should not intervene




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to establish the basis for future intervention that would be so intrusive and

unworkable.” 

the plaintiffs in O’Shea, Plaintiffs seek an injunction to control

conduct that might occur in future state criminal trials. And, as a mechanism for

enforcing that injunction, Plaintiffs ask the district court to impose a periodic

reporting requirement on Valeska which would be supervised by a federal court-

appointed monitor. This request implicates directly the concerns expressed in the

O’Shea opinion.

      In addition -- as in O’Shea -- federal intervention would be required each

time a member of Plaintiffs’ proposed class alleged a violation of the injunction.

In fact, Plaintiffs’ complaint contemplates such federal intervention by requesting

expressly an order ensuring Plaintiffs the opportunity to intervene if Valeska’s

discrimination continues and asking the court to retain jurisdiction until its order

has been implemented fully. This kind of relief would be extremely intrusive on

the state courts and the administration of state law.

      Plaintiffs argue that, because individual jurors are not parties to the criminal

proceeding from which they are excluded, enforcement of the injunction would

not interfere with individual state criminal cases. Even if that proposition is true,

enforcement of the injunction might -- as Plaintiffs themselves suggest -- involve

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holding Valeska in contempt, which would again raise concerns under O’Shea and

Younger. See Luckey v. Miller, 

, 679 (11th Cir. 1992) (explaining

that abstention was appropriate, in part “if, at the end of protracted litigation, a

compliance problem arose which would force abstention on the same ground that

existed prior to trial.”). We are also unpersuaded by Plaintiffs’ argument that

abstention is inappropriate where no pending state proceeding exists. See 

a similar argument because the proposed injunction -- which would

require the state’s governor and judges to increase services for indigent defendants

-- “would, inevitably, interfere with every state criminal proceeding.”).

      Contrary to Plaintiffs’ argument, Carter v. Jury Comm’n of Greene Cnty.,

(1970), and Ciudadanos Unidos de San Juan v. Hidalgo Cnty. Grand

Jury Comm’rs, 

, 830 (5th Cir. 1980), do not control this case. Both

Carter and Ciudadanos are distinguishable because they involved challenges to the

alleged systematic and unilateral exclusion of racial groups from jury rolls by

officials charged with the administration of the state’s jury-selection laws.

Plaintiffs, on the other hand, challenge the discretionary use of peremptory strikes

during judicial proceedings -- strikes which may be objected to, ruled on

contemporaneously, and subjected to appellate review. We see no abuse of




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discretion and affirm the district court’s dismissal of Plaintiffs’ Equal Protection

claim.

         Plaintiffs also argue that the district court erred in concluding that 18 U.S.C.

§ 243 did not provide a private right of action. Whether a statute provides a

private right of action is a question of statutory construction that we review de

novo. Touche Ross & Co. v. Redington, 

, 2285 (1979); Dionne v.

Floormasters Enters., 

, 1203 (11th Cir. 2012).

         In interpreting a statute, we must begin with the statutory language itself.

Touche Ross & 

. And we must determine whether that

language “displays an intent to create not just a private right but also a private

remedy.” Alexander v. Sandoval, 

, 1519 (2001). Where no

Congressional intent to create a private remedy exists, no private remedy exists.

243 contains this language:

         No citizen possessing all other qualifications which are or may be
         prescribed by law shall be disqualified for service as grand or petit
         juror in any court of the United States, or of any State on account of
         race, color, or previous condition of servitude; and whoever, being an
         officer or other person charged with any duty in the selection or
         summoning of jurors, excludes or fails to summon any citizen for
         such cause, shall be fined not more than $5,000.

18 U.S.C. § 243.

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      The plain text of section 243 does not provide for a private right of action.

Nor does it suggest that Congress intended to create a private right of action.

Instead, the statutory language demonstrates that Congress intended the statute to

be enforced through the imposition of criminal fines. Because section 243 does

not provide for a private right of action, the district court properly dismissed

Plaintiffs’ claim.

      AFFIRMED.




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