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_____________________________________________________________________________________

Case No. 11-2164

In the United States Court of Appeals for the Seventh Circuit

BRYAN J. BROWN

Appellant

v.

ELIZABETH BOWMAN, et al .

Appellees

____________________________________________________________________________

APPEAL OF RIGHT

____________________________________________________________________________

Brief of Appellant Bryan J. Brown

Bryan J. Brown

KS Bar No. 17634

Attorney pro se

827 Webster Street

Fort Wayne, IN 46802

(260) 515-8511

[email protected]



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I. Disclosure Statement

Appellant is neither a corporation nor a corporate party.

II. Table of Contents

Table of Contents

I. Disclosure Statement......................................................................................................................... 2

II. Table of Contents ............................................................................................................................... 2

III. Table of Authorities ........................................................................................................................ 4

IV. Statement of Jurisdiction ............................................................................................................... 5

V. Issues Presented................................................................................................................................ 6

VI. Statement of the Case ................................................................................................................... 6

VII. Statement of the Facts .................................................................................................................. 7

A. The Relationship to the Bar Admission Motion ......................................................... 7

B. Collusion in High Places and Fears of Ongoing Harm .................................................. 9

C. The Work of the Authorities at Bar (Dr. Stephen Ross) ................................................. 9

D. The Work of The Authorities at Bar (Dr. Elizabeth Bowman) ..................................... 11

E. The Work of The Authorities at Bar (JLAP Management) ............................................... 12

F. The Admissions of Dr. Elizabeth S. Bowman ..................................................................... 14

VIII. Summary of the Argument .......................................................................................................... 16

IX. The Argument (in three movements) ......................................................................................... 16

A. De Novo Review Applies to All Issues at Bar .............................................................................. 16

1. De Novo Review of a Dismissal under Federal Rule Civil Procedure 12(b)(1) .................. 17

2. De Novo Review Can Contemplate Extrinsic Evidence ......................................................... 17

B. Rooker-Feldman abstention is not justified in this instance....................................................... 18

1. Rooker-Feldman Abstention is a doctrine of narrow applicability ......................................... 19

2, Rooker-Feldman Abstention is a doctrine on life support ...................................................... 20

3, If Rooker- Feldman yet lives, it does so via the “inextricably intertwined” doctrine ............ 21



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4. The Instant Appeal is not on all fours with The District of Columbia Court of Appeals v.

Feldman ................................................................................................................................................. 23

a. Close to Feldman, but no cigar .............................................................................................. 23

b. Feldman’s “inextricably intertwined” doctrine ....................................................................... 25

does not apply to the facts at bar ................................................................................................... 25

5. Rooker - Feldman’s Operative Core Reveals the Doctrine Inapplicable at Bar ................. 27

a. Plaintiff is not the state-court loser ........................................................................................ 28

Rooker-Feldman anticipates........................................................................................................... 28

b. Plaintiff does not complain of injuries .................................................................................... 30

visited upon him by a state court judgment. ................................................................................. 30

c. Plaintiff does not complain of any injuries ............................................................................ 32

arising after January 22, 2009 ........................................................................................................ 32

d. Plaintiff does not invite the district court to either ................................................................ 32

review or reject another court’s conclusion. ................................................................................. 32

e. The District Court Conceded that the Core of ...................................................................... 33

Rooker-Feldman is Inapplicable in this Instance ......................................................................... 33

6. TheDistrictCourtErredinConcludingthatRooker- Feldman’s“InextricablyIntertwined”

DoctrineAppliedinthisInstance ........................................................................................................ 34

a. Does the federal claim succeed only to the extent ............................................................. 36

that the state court wrongly decided the issues before it? ......................................................... 36

b. Is federal relief predicated only upon a conviction .............................................................. 37

that the state court was wrong? ..................................................................................................... 37

Conclusion as to the Rooker-Feldman Issue ................................................................................... 38

C. Defendants are not entitled to absolute immunity. .................................................................. 39

1. The District Court erred in granting Appellees Dr. Ross and Dr. Bowman expert witness

immunity. ............................................................................................................................................... 39

2. Absolute Immunity is to be granted quite sparingly ................................................................ 39

3. WitnessImmunityisasubspeciesofAbsoluteImmunity ....................................................... 41

a. Briscoe v. LaHue does not apply to ....................................................................................... 41

the expert witness reports at bar .................................................................................................... 41

b. Drs. Elizabeth Bowman and Stephen Ross did not ............................................................ 43

function as court-appointed expert witnesses. ............................................................................ 43



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4. Seventh Circuit Precedent does not Recommend Absolute Immunity under the facts at

bar 51

Conclusion as to the Witness Immunity Issue ................................................................................. 53

X. Conclusion Seeking Relief .............................................................................................................. 54

XI. Certificate of Compliance ............................................................................................................ 55

III. Table of Authorities

Cases

Baldwin v. Hutchison, 35 N.E. 711, 712 (1893) ............................................................................... 51

Briscoe v. LaHue, 460 U.S. 325 (1983)......................................................................................... 40, 41

Burns v. Reed, 500 U.S. 478 (1991). ................................................................................................... 39Butz v. Economou , 438 U.S. 478 (1978) ............................................................................................. 39

Centres, Inc. v. Town of Brookfield, 148 F.3d 669, 702-03 (7th Cir.1998) ........................... 31, 37

District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d

206 (1983) ...................................................................................................................................... passim

Duncan v. Duncan , 764 N.E.2d 763, 767 (Ind.Ct.App.2002) ......................................................... 47

Exxon Mobil Corp. v. Saudi Basic Industries Corp ., 544 U.S. 280, 284, 125 S.Ct. 1517, 161

L.Ed.2d 454 (2005).................................................................................................................. 18, 19, 30

Farrell v. Littell , 790 N.E.2d 612, 617 (Ind.Ct.App.2003) ............................................................. 49

GASH Associates v. Village of Rosemont , 995 F.2d 726, 728 (7th Cir.1993) ................ 30, 32, 37

Giffin v. Summerlin, 78 F.3d 1227 (7th Cir.1996) ................................................................ 42, 50, 51Hay v. Indiana State Bd. of Tax Commis , 312 F.3d 876, 879 (7th Cir.2002) ............................ 16

House v. Belford , 956 F.2d 711, 720-271 (7th Cir.1992) .......................................................... 41, 48

Imbler v. Pachtman , 424 U.S. 409, 430 (1976)................................................................................. 39

Imbler v. Pachtman , 424 U.S. 409, 440 (1976) (White, J., concurring in the judgment) ........ 50

Kamilewicz v. Bank of Boston Corp., 92 F.3d 506, 510 (7th Cir.1996) ....................................... 32

Killingsworth v. HSBC Bank Nevada, N.A ., 507 F.3d 614, 618 (7th Cir.2007) ....................... 16

Lance v. Dennis , 546 U.S. 459,126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) ................ 18, 20, 21, 22

Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir.1999). .................. 16, 32, 37

Nesses v. Shepard, 68 F.3d 1003 (7th Cir.,1995) ........................................................................ 28, 37

Paschall v. State , 717 N.E. 2d 1273 (Ind.App.1999) ....................................................................... 48

Pennzoil Co. v. Texaco, Inc ., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) ............. 34, 36

Rhiver v. Rietman, N.E.2d 245, 248 (1970) ...................................................................................... 51

Ritter v. Ross , 992 F.2d 750, 753 (7th Cir.1993)........................................................................ 28, 37

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923)............. 18, 20, 21

Sanville v. McCaughtry , 266 F.3d 724, 726 (7th Cir.2001) ........................................................... 16

Skinner v. Switzer , 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011) ................................. 18, 19, 30



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Stump v. Sparkman , 435 U.S. 349 (1978) ......................................................................................... 39

Taylor v. Fed. Nat‘l Mortg. Ass‘n, 374 F.3d 529, 533 (7th Cir. 2004)........................................... 35

The District of Columbia Court of Appeals v. Feldman, 460 U.S. 488 (1973) (Stevens, J.,

dissenting)...................................................................................................................................... 22, 24

Statutes

28 U.S.C. § 1257...................................................................................................................................... 18

28 U.S.C. § 1331........................................................................................................................................ 4

28 U.S.C. § 1343........................................................................................................................................ 4

28 U.S.C. § 1738...................................................................................................................................... 22

28 U.S.C. §1367 ......................................................................................................................................... 4

28 USC §1291 ............................................................................................................................................ 5

42 U.S.C. § 1983.................................................................................................................................. 4, 29

42 USC § 1983 ......................................................................................................................................... 26

Ind.Stat.Ann 35-44-2-1 .......................................................................................................................... 48

Rules

Admis. Disc. R. 31, § 10 ............................................................................................................. 12, 23, 39

Evid.R. 101(c)(2)...................................................................................................................................... 47

F..R.C.P. 8. ............................................................................................................................................... 23

F.R.C.P. 12(b)(1)...................................................................................................................................... 16

F.R.C.P. 12(b)(6)...................................................................................................................................... 16

F.R.C.P. 56 ............................................................................................................................................... 16

Fed.R.App.P. 4........................................................................................................................................... 5

Indiana Evidence Rule 702................................................................................................................... 49

Indiana Evidence Rule 703................................................................................................................... 49

Indiana Rule of Evidence 603 ........................................................................................................ 43, 47

Treatises

13 Robert Lowell Miller, Jr., Indiana Evidence § 701.105 ............................................................ 49

Black's Law Dictionary (9th ed.2009) ................................................................................................ 46

IV. Statement of Jurisdiction

Appellant filed suit pursuant to federal questions jurisdiction, 28 U.S.C. § 1331,

claiming supplemental jurisdiction over the state law based claims pursuant to 28

U.S.C. §1367. (Plaintiff also referenced 28 U.S.C. § 1343 and 42 U.S.C. § 1983). The



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District Court determined that subject matter jurisdiction was lacking and so

dismissed the entire action via a final order filed April 20, 2011. Appellant filed a

proper notice of appeal on May 19, 2011 in keeping with Fed.R.App.P. 4. This

Honorable Court enjoys jurisdiction over this appeal pursuant to 28 USC §1291 as

that this is an appeal of right from the final decision of a federal district court. V. Issues Presented

1. Did the District Court err in finding that it lacked subjectmatter jurisdiction over the instant matter due to Rooker- Feldman abstention?

2. Did the District Court err in extending absolute immunityto putative expert witnesses who were not subjected tothe crucible of the judicial process?

VI. Statement of the Case

Appellant adopts in whole the District Court‘s Procedural Background and

further tenders the following of which this Honorable Court can take judicial

notice:

1. Defendant Elizabeth Bowman filed an amended answer to the

complaint on February 3, 2010 (ECF 32), two weeks before she filed her

February 24, 2009-dated motion to dismiss (ECF 42).

2. No other Defendants filed answers to the verified complaint.

3. Plaintiff claimed (in a short and plain statement) to bring the instant

litigation against Defendants Sudrovech and Harrell in both their

individual and official capacities. See,i.e.

Complaint (ECF No. 1) atstyle and parties, ¶¶ 12, 13.

4. Plaintiff filed an affidavit placing the reports of Defendants Sudrovech,

Bowman and Ross as well as Dr. William Alexy into the record via ECF



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57 and ECF 57-1. That affidavit contains much detail supporting the

witness immunity argument. See Appendix B of ECF 57, pp 37 – 40.

5. On May 19, 2011 Appellant filed a timely notice of appeal from the

District Court order of April 20, 2011. This appeal places only a subset

of the pled claims and only a subset of the named Defendants on this

Honorable Court‘s docket. ECF 66.

6. Defendants Ross and Bowman filed a motion for an appellate bond on June

1, 2011. ECF 70 & 71. Appellant filed a response brief. ECF 72. Appellees

filed a reply brief. ECF No. 74 The District Court ruled the motion moot by

action of the Appellant. ECF 76

7. Plaintiff was placed upon the role of the Kansas Supreme Court in 1996 and

has enjoyed good standing in that bar since. Plaintiff was admitted to the

bar of this Honorable Court in 1999 and admitted to the bar of the United

States Supreme Court in 2001, having never been disciplined by any bar.

8. Plaintiff was certified as to good moral character and fitness to practice law

by the National Conference of Bar Examiners in 2007. ECF 1, ¶ 217.

9. Under operation of Indiana law Plaintiff at bar is currently unable to

practice law in any court located in the State of Indiana for anyone other

than himself. This includes the federal courts for the Northern and

Southern Districts of Indiana. Plaintiff brings the instant appeal pro se .

VII. Statement of the Facts

Appellant adopts in whole the District Court‘s Factual Background, with the

addition of the following:

A. The Relationship to the Bar Admission Motion

10. The following is excerpted from Plaintiff‘s lengthy verified complaint (ECF 1)

as to the relationship of the instant litigation to In Re Applicant 24128 .

a. Plaintiff does not ask this Honorable Court to reverse or even review the



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ultimate outcome of his bid to become a licensed Indiana attorney. As precedent

makes clear, that case will be heard, if at all, by the United States Supreme

Court. This court simply lacks the subject matter jurisdiction to relieve the

instant Plaintiff of the order that he not be admitted to the Indiana bar and not

even seek admission again until 2014. [¶21]

b. This suit is not focused upon the inaction of the Indiana Supreme Court or the

action of the Indiana Board of Law Examiners. This suit is instead focused upon

the actions of the staff of the Judges and Lawyers Assistance Program and the

small cadre of hand-picked providers with whom they collaborate. As such this

case has applicability far beyond bar admission issues. [¶22]

c. The actions alleged herein and the remedies sought herein are not the type that

can be brought to the United States Supreme Court in an action seeking a

reversal of the Indiana Supreme Court‘s denial of Plaintiff‘s admission to its bar.

If the claims brought herein are not heard by this Honorable Court, the claims

brought herein are unlikely to be heard in any court of law. [¶23]

d. Plaintiff had communicated his intent to bring this litigation long before the

Indiana Supreme Court issued its five sentence, law-free ruling on his 31 month

application to add Indiana to the list of multiple jurisdictions that had found him

of sufficient moral character and mental fitness to practice law. [¶24]

e. Plaintiff had intended to bring this litigation whether Indiana found him

possessed of such moral character and mental fitness or not. Thus the fact that

Indiana did not should not enter into the calculus of whether this case is rightly

before the court. [¶25]

11. Plaintiff‘s prayers for relief in the instant litigation arise out of torts

independent of the final order issued on November 16, 2009 disposing of his bar

application motion. (In re Applicant 24128) ECF 1, Legal Claims

12. Plaintiff threatened to file litigation based upon these torts more than a year

prior to the issuance of the final order of In re Applicant 24128 . ECF 1, ¶¶ 84, 92 –

94.



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B. Collusion in High Places and Fears of Ongoing Harm

13. Plaintiff alleges that Dr. Bowman, Dr. Ross, social worker Sudrovech1 and

government attorney Harrell were involved in collusion toward the goal of violating

Plaintiff‘s rights under the state and federal constitutions. ECF 1, Legal Claims 4-

13, 21 – 23.

14. Plaintiff alleges that social worker Sudrovech engaged in the independent

tort of interfering with his contract with Dr. Bowman. ECF 1, Legal Claim 20.

15. Plaintiff fears that the reports of Drs. Bowman and Ross will be

communicated to authorities outside of the State of Indiana, thereby negatively

impacting his professional options in the future. ECF 1, ¶¶ 209 – 212

16. Plaintiff fears that publishing the details of his processing through the

Indiana JLAP system in book form may result in disciplinary actions against him.

ECF 1, ¶¶ 213 – 216

C. The Work of the Authorities at Bar (Dr. Stephen Ross)

17. Dr. Stephen Ross, psychologist (―Dr. Ross‖) was retained by

Plaintiff/Appellant, who paid in full for Ross‘ services, on the order of Defendant

Sudrovech. ECF 1, ¶¶ 33, 206

18. Defendant Ross‘s report was in letter form, written to Defendant Tim

Sudrovech, and closed with the following pledge: ―Should you [Tim Sudrovech]

or Mr. Brown notice any errors in this report, please contact me. I am open to a

revised version of this report. If you or Mr. Brown have any specific questions,

please do not hesitate to contact me. As always, I appreciate having the opportunity

to be of assistance to JLAP.‖ ECF 57-1, p.9

1 Timothy Sudrovech, MA, LCSW is Clinical Director of the Judges and Lawyers Assistance

Program. He is neither a judge, an attorney, a psychologist nor psychiatrist.



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19. Plaintiff/Appellate contacted Dr. Ross about his concerns as to the content of

his report, and in specific:

a. Ross‘ ―nondiagnosis‖ that Plaintiff/Appellant‘s social affect ―suggests to me

the possibility of a sub-clinical bipolar disorder of a hypomanic type.‖ (Emp.

in original) ECF 57-1, p.9; ECF 1, ¶¶ 48 – 53, 80 – 82, 92 – 98; Legal Claims

8, 23.

b. Ross‘ seizure of Brown‘s handwritten work product preserving Brown‘s

contemporaneous concerns regarding the content of the test questions asked

of him by Dr. Ross. ECF 1, ¶¶ 36 – 39, Legal Claims 11, 14.

c. Dr. Ross‘ weighing of Brown‘s weltanschauung through religious and political

questioning in a government evaluation process that culminated in the

following report by Ross: ―It is important for me to note, however, that I am

not making these statements purely based upon the fervor of Mr. Brown‘s

religious beliefs and convictions. ― ECF 57-1, p.9. (emp. added); ECF 1, ¶¶ ¶¶

64 – 79, Legal Claims 12, 13; see Plaintiff‘s concerns at ECF 1, ¶¶ 56-57.

20. The Ross report did not contain a jurat or any other indicia of testimonial

intent. ECF 57-1, pp.2 - 9.

21. The Ross report was not submitted as evidence per any written rules of

procedure. ECF 57-1, pp. 1-2; ECF 57, pp. 37 - 40.

22. The Ross report was not subjected to cross-examination. Id.

23. Dr. Ross never took to the witness stand or otherwise offered testimony at a

hearing incident to In re 24128. Id.

24. The Ross report was not the subject of any stipulations rendering it

testimonial or evidentiary. Id.

25. No change was made to the Ross report in response to Brown‘s requests. The

authorities at the IBLE [Indiana Board of Law Examiners] were given information

by unknown persons that caused them to conclude the following: ―[Brown] picked a

fight early with JLAP, a coordinate agency of the Judicial Branch that the

Applicant never bothered to understand (he often referenced to JLAP as if its

employees worked for the Board of Law Examiners), and his attitude toward its



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dedicated professional employees and cooperating clinicians was often rude and

curt. While these behaviors are not disqualifying, they are notable.‖ ECF 52-2

(September 25, 2009 Findings of Face, Conclusions of Law and Recommendations of

the Indiana Board of Law Examiners, at p. 29)

26. The Ross report was tendered, without notice of Appellant‘s concerns, to the

IBLE by Social Worker Sudrovech on June 3, 2008. ECF 57-1, pp. 1-2.

D. The Work of The Authorities at Bar (Dr. Elizabeth Bowman)

27. Dr. Elizabeth Bowman, psychiatrist (―Dr. Bowman‖) was retained by

Plaintiff/Appellant, who paid in full for Bowman‘s services, on the order of

Defendant Terry Harrell. ECF 1, ¶¶ 123 – 129.

28. Dr. Bowman tendered a report on Brown that again weighed his ideology to

opine on his worthiness as to a government license. ECF 1, ¶¶ 133 – 169.

29. Brown challenged the Bowman report for, inter alia, the following reasons:

a. Bowman cited as evidence of mental illness Brown‘s conservative ideology:

―[Petitioner] showed lack of empathy for women whose pregnancies may be the

result of rape or incest, for the [abortion providing] plaintiffs in the federal civil

lawsuit against him who were left with their attorneys fees to pay, for this

[psychiatrist] whose profession and presumed religious beliefs he repeatedly

devalued‖ ECF 57-1, pp. 20 – 21. See also ECF 32 (Bowman answer) at ¶¶ 144,

157; ECF 1, Legal Claims 4 - 13

b. Bowman cited as evidence of mental illness Brown‘s actions in conformance with

his religious beliefs: ―[Brown‘s] conscience has been shaped by his Roman

Catholic beliefs.‖ ―[Brown‘s] moral integrity has been expressed in a manner that

has led to principled civil disobedience based upon his religious beliefs.‖

―[Brown‘s] past arrests are related to his religious beliefs …‖ ―I find his

personality disorder has caused him to lose perspective on the ethics of his

behaviors and to be arrested for civil disobedience [between 1988 – 1992].‖ ECF

57-1, pp. 23 ; ECF 1, Legal Claims 4 - 13



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c. Bowman grossly misrepresented the conclusions of Dr. William Alexy as to

Brown‘s mental health, which Dr. Alexy found sufficient to justify licensure. See

answers, infra; ECF 1, Legal Claims 16 – 19.

30. No change was made to the Bowman report in response to Brown‘s concerns,

but rather the authorities at the IBLE were given information by Sudrovech that

caused them to conclude the following: ―Dr. Bowman diagnosed [Petitioner] as

having a Personality Disorder NOS [Not Otherwise Specified]‖ and noted that this

is what ―led to his arrests [some eighteen years ago].‖ ECF 57-1, p. 13

31. The Bowman report did not contain a jurat or any other indicia of testimonial

intent. ECF 57-1, pp. 15 – 24.

32. The Bowman report was not submitted as evidence per any written rules of

procedure. ECF 57-1, pp. 13-14, ECF 57, pp. 37 - 40.

33. The Bowman report was not subjected to cross examination. Id .

34. Dr. Bowman never took to the witness stand or otherwise offered testimony

at a hearing. Id.

35. The Bowman report was not the subject of any stipulations rendering it

testimonial or evidentiary. Id.

36. The Bowman report misspelled Defendant Sudrovech‘s name, grossly

misrepresented the analysis of Dr. William Alexy and contained myriad additional

factual errors and misstatements of the record, as well as a strong rebuke of

Plaintiff for his attempts to clarify his own history. ECF 57-1, pp. 30 – 39.

37. Dr. Bowman admits to including hearsay in her ostensible expert opinion

report in her answer to the complaint. See ECF 32, ¶¶ 172-177.

38. The Bowman report was tendered to the IBLE by Social Worker Sudrovech

on January 22, 2009. ECF 57-1, pp. 13-14.

E. The Work of The Authorities at Bar (JLAP Management)



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39. Defendant Sudrovech ―interpreted‖, weighed and adopted the report of the

psychiatrist Dr. Bowman in his report to the IBLE, stating ―JLAP concurs with Dr.

Bowman‘s evaluation and diagnosis …. [noting among other items that Brown]

‗showed lack of empathy‘ about issues associated with his beliefs.‖ ECF 57-1, p. 13.

40. Defendant Sudrovech further wrote that ―JLAP agrees to some degree with

Dr. Bowman‘s conclusion ‗that Mr. Brown‘s success would be enhanced by

individual psychotherapy‖, as anyone who would actively involve themselves in a

therapeutic process would. However JLAP questions how much Mr. Brown would

value the experience of psychotherapy, how appropriately engaged in a therapeutic

process would be.‖ ECF 57-1, p. 14 (emp.added).

41. Sudrovech similarly ―interpreted‖ the report of the psychologist Dr. Ross in

his report to the IBLE. ECF 57-1, pp. 1-2.

42. Neither the Sudrovech-Ross report (i.e. Sudrovech‘s report attached to the

Ross report and filing both with the IBLE, ECF 57-1, pp. 1-2) nor the Sudrovech-

Bowman (i.e. Sudrovech‘s report attached to the Bowman report and filing both

with the IBLE, ECF 57-1, pp. 13-14) report contained a jurat or any other indicia of

testimonial intent by Social Worker Sudrovech. See also ECF 57, pp. 37-40.

43. Neither the Sudrovech-Ross report nor the Sudrovech-Bowman report were

submitted as evidence per any written rules of procedure. ECF 57-1, pp. 1-2, 13-14,

ECF 57, pp. 37-40.


subjected to cross examination. Id.

45. Social Worker Sudrovech never took to the witness stand or otherwise offered

testimony at a hearing. Id .


the subject of any stipulations rendering it testimonial or evidentiary. Id.

47. According to Indiana Supreme Court Admis. Disc. R. 31, § 10,

Defendants Sudrovech and Harrell are immune from civil suit for ―official acts done

in good faith in furtherance of the Committee‘s work.‖



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48. Plaintiff alleges bad faith on the part of Defendants Harrell and Sudrovech.

¶¶ 17, 55, 103, 151, 165, 204, 207, 265.

49. Plaintiff alleges both official and individual (unofficial) acts on the part of

Harrell and Sudrovech. ECF 1, at ¶¶ 12 – 13.

50. Plaintiff notified Defendant Harrell of his concerns regarding the

unconstitutional and unprofessional manner in which she, Sudrovech and the

Judges and Lawyers Assistance Program had processed the referral from the IBLE

prior to the final ruling of the Indiana Court. ECF 57-1, pp. 38 – 41.

51. Plaintiff notified the Hearing Panel incident to In re Applicant 24128 of his

concerns to no avail, as that the Court did not deign to address any of Plaintiff‘‘s

concerns or prayers for legal or equitable relief incident to that motion hearing. ECF

57, p. 39.

F. The Admissions of Dr. Elizabeth S. Bowman

52. Admissions contained in the Amended Answer filed by Defendant Dr.

Bowman:

a. Dr. Bowman admitted that she knew of Plaintiff‘s identity as a pro-life

Christian even before he initially contacted her or signed any releases allowing

the government to brief her. ECF 32, ¶128

b. Dr. Bowman admitted that she refused to answer questions about her practice,

associations and beliefs at the onset of her evaluation of Plaintiff. ECF 32,

¶136

c. Dr. Bowman admitted that Plaintiff informed her of his belief that

constitutional law circumscribed the proper focus of government examinations.

ECF 32, ¶142

d. Dr. Bowman admitted ordering Plaintiff to quote no such constitutional law to

her. ECF 32, ¶143

e. Dr. Bowman admitted that Plaintiff informed her of his belief that Dr. Ross‘

seizure of his work product violated Plaintiff‘s civil rights. ECF 32, ¶142



15

f. Dr. Bowman admitted that Plaintiff informed her of his belief that Dr. Ross‘

test questions violated Plaintiff‘s civil rights. Id.

g. Dr. Bowman‘s diagnosis of Plaintiff as one suffering from mental illness was

predicated upon her conclusion that Plaintiff ―expressed devaluing attitudes

toward pharmacologic or psychotherapeutic mental health treatment and made

sarcastic remarks devaluing authority of all types, especially mental health

authority and the abortion industry.‖ ECF 32, ¶162

h. Plaintiff posted that ―Dr. Bowman asserted in her final report that Dr. Alexy

‗felt Mr. Brown would benefit from individual psychotherapy with a woman

therapist.‘ This statement is nowhere found in Dr. Alexy's report.‖ Dr.

Bowman answered: ―While the allegations in this paragraph are technically

correct, Dr. Bowman did speak with Dr. Alexy [insert hearsay allegations after

this point].‖ ECF 32, ¶174

i. Plaintiff posited that ―Dr. Bowman asserts in her final report that ‗Dr. Alexy's

testing concluded that Mr. Brown likely has Personality Disorder Not

Otherwise Specified.‘ This statement is nowhere found in Dr. Alexy's report.

Dr. Alexy instead offers no diagnosis as to a mental illness or ‗personality

disorder‘ in his report. Dr. Alexy, like Dr. Flueckiger, found no label from the

DSM IV applicable to Plaintiff.‖ Dr. Bowman answered ― While the first four

sentences of this paragraph are technically correct, [insert hearsay allegations

after this point].‖ ECF 32, ¶177.

j. Plaintiff posited that ―Defendant Bowman told Plaintiff that during the [pre]-

briefing Defendant Sudrovech had instructed her to not record a final

conclusion as to Plaintiff‘s ability to pass [Indiana Admission] Rule 12 analysis

as both Dr. Ross and Dr. Flueckiger had done. Defendant Sudrovech rather

ordered Defendant Bowman to leave the question open to be addressed by his

final report.‖ Dr. Bowman answered ― It is admitted that Tim Sudrovech did

request that Dr. Bowman not include in her written report a conclusion as to

whether the Plaintiff should be admitted to the bar [insert hearsay allegations

after this point].‖ ECF 32, ¶165



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VIII. Summary of the Argument

The present appeal places two issues before this Honorable Court: The width of

Rooker-Feldman abstention and the reach of expert witness immunity.

Both issues are supported with a well-developed factual record due to the

presence of a verified complaint, supplemental affidavit and Dr. Bowman‘s answer.

Appellant argues that Rooker-Feldman does not reach this case due, inter alia ,

to the fact that he does not seek redress for harm caused by a state court judgment.

Appellant additionally argues that the District Court erred in extending expert

witness immunity to nontestifying, nonwitnesses in circumstances far removed

from the crucible of judicial process.

IX. The Argument (in three movements)

The District Court dismissed the instant litigation on jurisdictional and immunity

grounds: ―[The] Court finds that it lacks jurisdiction to adjudicate the Plaintiff‘s

claims and the Defendants are entitled to immunity.‖ Order, ECF 63, p.1. Given

this order, the present argument is presented in two sections: B. Rooker-Feldman

abstention is not justified in this instance, and C. Defendants are not entitled to

absolute immunity. But first we have A., the standard of review governing both

issues at bar.

A. De Novo Review Applies to All Issues at Bar



17

Since the Court below granted a motion to dismiss pursuant to Rule 12(b)(1),2

this Honorable Court should review against a de novo standard. See Sanville v.

McCaughtry , 266 F.3d 724, 726 (7th Cir.2001)

1. De Novo Review of a Dismissal under Federal Rule Civil Procedure 12(b)(1)

The purpose of a F.R.C.P. 12(b) motion to dismiss is not to decide the merits

of the case, but whether the plaintiff has pled enough to justify an answer. A

F.R.C.P. 12(b)(1) motion tests whether the Court has subject matter jurisdiction in

the first place. Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th

Cir.1999).

When reviewing a motion to dismiss under [Rule 12(b)] rubrics, the Court

should assume true all factual allegations in Plaintiff's complaint and draws all

reasonable inferences in Plaintiff‘s favor. Killingsworth v. HSBC Bank Nevada,

N.A ., 507 F.3d 614, 618 (7th Cir.2007) ;Long, 182 F.3d at 554.

2. De Novo Review Can Contemplate Extrinsic Evidence

Consideration of evidence extrinsic to the pleadings is appropriate under

Rule 12(b)(1), analysis,. Hay v. Indiana State Bd. of Tax Commis , 312 F.3d 876, 879

(7th Cir.2002) (―the district court had not only the right, but the duty to look beyond

the allegations of the complaint to determine that it had jurisdiction to hear the

landowners' claim‖).

2 The Court clearly refused to enter into summary judgment or even F.R.C.P. 12(b)(6)analysis as to the claims at bar. See, e.g., Order at p. 9 (F.R.C.P. 56) and Order at p. 9, n.4and Order, p. 24, n. 8 (ECF 63). ―In this case, the Court is dismissing all of the Plaintiff‘sclaims on jurisdictional grounds, not for failure to state a claim.‖ ECF 63, Order, p. 30.―Given that the Court finds it lacks jurisdiction based on the Rooker-Feldman doctrine … itwill not reach the claim preclusion issue …‖ ECF 63, p. 19, n. 4.



18

Evidence extrinsic to the Verified Complaint at bar include Plaintiff‘s

affidavit and attachments (ECF 57 & ECF 57-1), Defendant Bowman‘s amended

answer (ECF 32 ), and Defendant Ross‘ filing of Plaintiff‘s petition for certiorari in

the contemporaneous litigation Bar Applicant 24128 , No. 94S00-0910-BL-446, at 1

(Ind. Nov. 16, 2009) (Hereinafter ―In re 24128 ‖) (ECF 52 - 1). The District Court did

not consider most of these extrinsic items in its jurisdictional and immunity

analysis. The Court of Appeals may decide it best to do so during its de novo review

of the matters at bar. (Indeed, it is difficult to rule upon the witness immunity issue

at bar without considering, at a minimum, the content of the reports of Defendants

Bowman, Ross and Sudrovech gathered at ECF No. 57-1). Given that the instant appeal is to be weighed de novo , with the advantage

of judicial forbearance given to the Appellant (as Plaintiff below, because he was

the plaintiff below), Appellant will utilize ―Plaintiff‖ and ―Defendant‖ in the main

rather than Appellant Brown or Appellees Bowman, Ross, Sudrovech or Harrell

throughout what follows.

B. Rooker-Feldman abstention is not justified in this instance

Appellant finds little to take issue with in the District Court‘s presentation of

the Black Letter law defining the historic Rooker-Feldman doctrine, disagreeing

only with the Court‘s application of the same to the instant facts. The Appellant

readily admits that he is in no position to lecture this Honorable Court on a

justiciability doctrine that this Court has helped develop over the past decades.



19

Such a lecture, if needed (and it does not appear to be needed in the Seventh

Circuit given that the United States Supreme Court has adopted much reasoning

from the Seventh Circuit to define the doctrine), is found in the High Court‘s most

recent cases weighing Rooker-Feldman claims. Those cases form what could be

dubbed a Rooker-Feldman ―Trifecta.‖ This Trifecta is defined by Exxon Mobil Corp.

v. Saudi Basic Industries Corp ., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454

(2005) (―Exxon Mobil ‖), Lance v. Dennis , 546 U.S. 459,126 S.Ct. 1198, 163 L.Ed.2d

1059 (2006)(‖Lance ‖) and Skinner v. Switzer , 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233

(2011)(―Skinner ‖).

1. Rooker-Feldman Abstention is a doctrine of narrow applicability

In a passage that may betray more-than-slight judicial annoyance with the

continued viability of the Rooker-Feldman doctrine, Justice Ruth Bader Ginsburg

(for the six Justice majority)3 recently penned the following:

As we explained in Exxon Mobil [ ] , the Rooker – Feldman doctrine hasbeen applied by this Court only twice, i.e ., only in the two cases fromwhich the doctrine takes its name: first, Rooker v. Fidelity Trust Co.,263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), then 60 years later,District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 103S.Ct. 1303, 75 L.Ed.2d 206 (1983). Both cases fit this pattern: Thelosing party in state court [ ] filed suit in a U.S. District Court after thestate proceedings ended, complaining of an injury caused by the state-court judgment and seeking federal-court review and rejection of that

judgment. Alleging federal-question jurisdiction, the plaintiffs inRooker and Feldman asked the District Court to overturn the injurious

state-court judgment . We held, in both cases, that the District Courtslacked subject-matter jurisdiction over such claims, for 28 U.S.C. §1257 ―vests authority to review a state court's judgment solely in thisCourt.‖ See Exxon [Mobil] , 544 U.S., at 292 ...

3 Justices Thomas, Kennedy and Alito filed a dissenting opinion that failed to address

Rooker-Feldman abstention. Id.at 1300.



20

Skinner , 131 S.Ct. at 1297. It could be read into the above selection that the High

Court is surprised by the ongoing popularity of a doctrine that it has not seen fit to

apply even once in the almost three decades following its eponymous birth. That

said, the Rooker-Feldman doctrine does have a raison d‘être . It is found in the

italics above: Rooker-Feldman abstention arises when a plaintiff files suit seeking

to have a federal district court ―overturn an injurious state-court judgment.‖ It

exists, in other words, to stop civil court plaintiffs that are attempting to make an

end run around a state court by taking down the sole cause of their harm – a state

court order.

Plaintiff Brown attempts no such end run, and brings harm independent of a

state court order to bar.

The High Court has now noted twice in the past five years that lower federal

courts have not held Rooker-Feldman abstention to its narrow role:

We observed in Exxon [Mobil] that the Rooker – Feldman doctrine hadbeen construed by some federal courts ―to extend far beyond thecontours of the Rooker and Feldman cases.‖ Id ., at 283, ..[Weemphasized] ―the narrow ground‖ occupied by the doctrine,

Skinner , 131 S.Ct. at 1297. As will be detailed, infra , the present litigation alleges

independent torts and is not, therefore, on the narrow ground set off-limits by

Rooker-Feldman abstention.

2, Rooker-Feldman Abstention is a doctrine on life support

Rooker-Feldman has been narrowed to a sliver through the Trifecta – yet

neither Skinner‘s majority nor Skinner‘s dissent penned the funeral eulogy for



21

Rooker-Feldman . Perhaps they were deferring to Justice John Paul Stevens, who

had so eulogized Rooker-Feldman years earlier:

Rooker and Feldman are strange bedfellows. Rooker , a unanimous,

three-page opinion written by Justice Van Devanter in 1923, correctlyapplied the simple legal proposition that only this Court may exerciseappellate jurisdiction over state-court judgments. [ ] Feldman, anonunanimous, 25 – page opinion written by Justice Brennan in 1983,was incorrectly decided and generated a plethora of confusion anddebate among scholars and judges. … Last Term, in Justice[Ginsburg‘s] lucid opinion in Exxon , the Court finally interred the so-called ― Rooker- Feldman doctrine.‖ And today, the Court quiteproperly disapproves of the District Court's resuscitation of a doctrinethat has produced nothing but mischief for 23 years.

Lance , 546 U.S. at 468, 126 S.Ct. at 1200 – 04 (Stevens, J., dissenting). To borrow

from a nineteenth century philosopher, Justice Stevens penned that Rooker-

Feldman was dead, Rooker-Feldman remained dead, and that previous High Court

decisions had ―killed‖ Rooker-Feldman via a clear explanation of issue and claim

preclusion.

3, If Rooker- Feldman yet lives, it does so via the “inextricably intertwined” doctr ine While the rumors of Rooker-Feldman ‘s death may be exaggerated, it is

noteworthy that the Lance majority again cautioned lower courts as to the narrow

applicability of Rooker-Feldman :

In Rooker , a party who had lost in the Indiana Supreme Court, and

failed to obtain review in this Court, filed an action in Federal DistrictCourt challenging the constitutionality of the state-court judgment . Weviewed the action as tantamount to an appeal of the Indiana SupremeCourt decision, over which only this Court had jurisdiction, and saidthat the ―aggrieved litigant cannot be permitted to do indirectly whathe no longer can do directly.‖



22

Lance , 546 U.S. at 463. In Rooker‘s almost 90 year old ―cannot do indirectly‖

prohibition is found, in nascent form, the ―inextricably intertwined‖ doctrine

animating the instant appeal. Like the instant case, Rooker arose out of the Indiana

Supreme Court. Unlike the present case, Rooker asked the federal district court to

overrule the Indiana state court‘s judgment as violative of the federal constitution.

This was the ―indirect‖ attack that animated Rooker It is an indirect attack that

does not animate the instant appeal.

The Lance Court next jumped forward six decades to address the second

contributing case in the so-called Rooker-Feldman ―doctrine‖:

Our [Feldman] decision held that to the extent plaintiffs challengedthe [denial of bar entrance] decisions themselves — as opposed to thebar admission rules promulgated nonjudicially by the Court of

Appeals — their sole avenue of review was with this Court.

Neither Rooker nor Feldman elaborated a rationale for a wide-reachingbar on the jurisdiction of lower federal courts, and our cases sinceFeldman have tended to emphasize the narrowness of the Rooker –

Feldman rule; …Indeed, … ―this Court has never applied Rooker – Feldman to dismiss an action for want of jurisdiction.‖ [ ]

Lance , 546 U.S. at 463-64.

It is illustrative of Rooker-Feldman ‘s alleged narrow application that the

United States Supreme Court has only applied it twice and never to dismiss a

plaintiff‘s case. Such cannot be said of the lower federal courts, which moved the

Lance majority to reiterate a caution about Rooker-Feldman ‘s troubling past:

In Exxon Mobil , decided last Term, we warned that the lower courtshave at times extended Rooker – Feldman ―far beyond the contours of the Rooker and Feldman cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by



23

state courts, and superseding the ordinary application of preclusionlaw pursuant to 28 U.S.C. § 1738.‖

Lance , 546 U.S. at 464. As the instant appeal demonstrates, it is in this

―inextricably intertwined‖ doctrine that lower courts extend Rooker-Feldman ―far

beyond the contours‖ of Congressional mandates and civil rights laws in a fashion

usurping issue and claim preclusion analysis.

4. The Instant Appeal is not on all fours with The District of Columbia Court of Appeals v. Feldman

There can be no doubt that the now-retired Justice Stevens would not apply

Rooker-Feldman to the facts at bar.4 It is likely that a majority of the High Court

would view the facts animating the instant appeal as materially distinct from those

that gave rise to The District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 103 S.Ct. 1303 (1983).

a. Close to Feldman, but no cigar

At the outset it must be admitted that there is a superficial resemblance

between the facts at bar and Feldman , as that Marc Feldman and Edward Hickey

were in federal court after being denied entrance to a state bar. There is a glaring

difference in the facts between the instant appeal and Feldman, however, and that

glaring difference is found in the object of the litigants‘ ire. Feldman and Hickey

sought to drag the Bar Examiners, as well as the final order of the Bar Examiners,

into federal court. They prayed for a federal court order reversing the order of a

4 Justice Stevens has been Rooker-Feldman ‘s harshest critic since the doctrine‘sbirth. See The District of Columbia Court of Appeals v. Feldman, 460 U.S. 488(1973) (Stevens, J., dissenting)



24

court outside the appellate jurisdiction of the federal court system. Plaintiff at bar,

on the other hand, specifically asks that the state court order not be reviewed.

Facts, ¶10

Plaintiff at bar does not seek redress against the Board of Law Examiners

(who enjoy absolute immunity by statute) but rather against: (1) The independent

agents of JLAP (who enjoy qualified immunity by statute, Admis. Disc.R. 31§ 10),

and; (2) Their designates, who the district court found to enjoy absolute immunity

as expert witnesses. Plaintiff at bar brought suit against Defendants Harrell and

Sudrovech in both their official and individual capacities (Facts, ¶3),5 and the

allegedly independent ―cooperating clinicians‖ Defendants Bowman and Ross. The

former are the executives of the Judges and Lawyers Assistance Program (a

government agency independent of the Bar Examiners), the latter those private

mental health officials with whom Sudrovech and Harrell ordered Plaintiff to enter

into contract (or be failed through JLAP‘s evaluation). Facts, ¶17, 27

Feldman and Hickey rather sued the bar examiners, inviting the federal

district court to reverse the very order denying them bar entrance and to issue an

order instead seating them in the D.C. bar. If Feldman and Hickey won, they won

their tickets to practice law. If Feldman and Hickey won, the D.C. bar examiners

lost their ability to keep Feldman and Hickey from practicing in the district. The

instant Plaintiff does not seek such a comity-violating remedy. He merely asks the

federal court to determine whether his civil rights were violated by the actions of

5 The District Court erred in interpreting the capacity question (ECF 63 at p.26 ). Appellant

asks this Honorable Court to address that error pursuant to F.R.C.P. 8.



25

the non-bar examiner (and even nongovernmental) Defendants before he was

denied bar admission, and in a fashion that will negatively impact his ability to join

any other state bar in the future. ECF 1, ¶ 57; relief sought in Legal Claims 17 – 20.

If the federal district court granted the plaintiff at bar all that he asked as to relief

still there would be no court order reversing the Indiana Board of Law Examiners

or the Indiana Supreme Court.

In other words, even if the Appellant-at-bar wins on every claim raised and

benefits from all relief sought – then he would still remain outside the Indiana bar

looking in.

b. Feldman ’s “inextricably intertwined” doctrinedoes not apply to the facts at bar

The distinction between the appeal at bar and the iconic Feldman ruling is

further revealed in the majority‘s use of the ―inextricably intertwined‖ clause:

[Plaintiffs allege the court acted] arbitrarily and capriciously … and … unreasonably and discriminatorilyin denying their petitions [to jointhe bar and so] required the District Court to review a final judicial decision of the highest court of a jurisdiction in a particular case. Theseallegations are inextricably intertwined with the District of ColumbiaCourt of Appeals' decisions, in judicial proceedings, to deny therespondents' petitions. The District Court, therefore, does not have

jurisdiction over these elements of the respondents' complaints.

Feldman , 460 U.S. at 487 (emp.add). By way of comparison, Plaintiff at bar

advances no allegations against the Indiana Board of Law Examiners or the

Indiana Supreme Court. Plaintiff does not seek to leverage his bar admission denial

in this litigation, and, in fact, filed the instant action before that denial was final as

to review by the United States Supreme Court. The District Court could grant

Plaintiff at bar all of the requested relief without having to review any ―judicial



26

decision of the highest court of a jurisdiction in a particular case‖ – let alone a ―final

judicial decision‖ of such a court. The decisions of the Indiana courts, including In re

Applicant 24128 , are simply immaterial to the questions at bar.

Plaintiff‘s complaint does not present allegations ―inextricably intertwined‖

with the Indiana Supreme Court‘s ultimate decision to deny Plaintiff‘s motion to

enter the Indiana bar, and for that reason there exists no Rooker-Feldman bar to

the present action.

i . The Indiana judiciary recognizes a substantive difference between the IBLE and JLAP

Evidence that the instant Defendants cannot avail themselves of this

―inextricably intertwined‖ clause is the Indiana Board of Law Examiner‘s [―IBLE‖]

own interpretation of the difference between the IBLE and JLAP. In their decision

adverse to Applicant 24128, the IBLE chastised the future Plaintiff for not

understanding that he was dealing with two distinct and separate agencies. At the

same time the IBLE construed Plaintiff‘s professional concerns regarding

constitutional protections as ―picking a fight‖ with ―a coordinate agency of the

Judicial Branch that the Applicant never bothered to understand‖ noting that

Applicant ―often referenced to JLAP as if its employees worked for the Board of Law

Examiners.‖ September 25, 2009 Findings of Face, Conclusions of Law and

Recommendations of the Indiana Board of Law Examiners, at p. 29, ECF 52-2. The

IBLE and JLAP are not the same agency – they differ as to management, function,

focus and immunities, among other substantive qualities.



27

ii. Claims independent of In Re Applicant 24128 are asserted in the instant litigation.

Evidence that the present appeal is not a redux of Feldman is also revealed

by the fact that the instant Plaintiff could have brought this very same case (and

indeed, threatened to do just that, Facts ¶¶ 10d, 12, 19, 25, 29) had Indiana seated

him in their bar. In other words, Plaintiff has brought suit alleging constitutionally

cognizable torts (confiscation of work product, religious testing, First Amendment

violations, fraud in the reports, billing fraud, state constitutional violations) under

42 USC § 1983 that stand alone, independent of the final decision of the Indiana

Supreme Court. Plaintiff was harmed regardless of how the Indiana Supreme Court

ultimately ruled on his application for admission and brings that harm to bar as a

whistle blower. Facts, ¶¶ 10e, 11, 13 – 16, 50.

iii. The federal civil litigation was filed before the state process concluded.

Evidence that the present appeal is not on all fours with Feldman is likewise

found in the timing of the filings. The instant litigation was filed on December 8,

2009. Indiana Applicant 24128 filed a petition for certiorari with the United States

Supreme Court on March 16, 2010. Defendants made much of this fact below,

arguing that Younger abstention applied given the parallel state and federal

litigation. (See ECF 63 at fn. 3)

Thus the present appeal is distinguished from Feldman .

5. Rooker - Feldman’s Operative Core Reveals the Doctrine Inapplicable at Bar The unified Lance Court recently re-iterated, with a note of caution, the

operational core of this judicial doctrine:



28

Rooker – Feldman , we explained, is a narrow doctrine, confined to―cases brought by state-court losers complaining of injuries caused bystate-court judgments rendered before the district court proceedingscommenced and inviting district court review and rejection of those

judgments.‖

Lance , 544 U.S. at 284 Under this test the current litigation certainly does

not fall to the Rooker-Feldman doctrine, for the following four reasons:

a. Plaintiff is not the state-court loser Rooker-Feldman anticipates.

There was no previous case or controversy in the state court where

Defendants Harrell, Sudrovech, Ross or Bowman stood in the dock opposite

Plaintiff. Nor has the herein pled conspiracy ever been either pled or adjudicated in

a litigation setting in which the sought-after relief could have issued. This is

dispositive as to the Rooker-Feldman analysis.

Exxon Mobil answered the question as to whether being a ―loser‖ in an

underlying state case was predicate enough to justify abstention, ruling that

Rooker-Feldman does not apply to ―federal actions that simply raise claims

previously litigated in state court.‖ Exxon Mobil at 287 & n. 2 (cataloguing the

numerous cases in which the doctrine was mentioned ―only in passing or to explain

why those cases did not dictate dismissal‖).‖ The Exxon Mobil Court rather pointed

to ―state law preclusion principles‖ as the best determinant as to ―whether the

action can move forward in the majority of cases.‖ Id.

The instant litigation has not yet been subjected to preclusion principle

review. Said review will likely reveal no litigation that precludes federal

consideration of the claims at bar, since the ostensible ―state court loser‖ at bar did



29

not lose any litigation incident to his allegations that the Defendants at bar

committed acts of fraud and violated his civil rights.

Years before Exxon Mobil , this Honorable Court noted ―[t]he crucial point,‖

was not who could be labeled a ―loser‖ but instead the question of ―whether ‗the

district court is in essence being called upon to review the state-court decision.‘‖

Ritter v. Ross , 992 F.2d 750, 753 (7th Cir.1993) (quoting Feldman, 460 U.S. at 483 –

84 n. 16).

Plaintiff at bar specifically asked the District Court to not review the state

court decision and pled only that which could have been pled under principles of tort

and contract law months before the state court ruled on November 16, 2009. Facts,

¶10.

Would the present case face a Rooker-Feldman bar if the present Plaintiff

had won his motion to be seated in the Indiana bar? No. Yet Plaintiff would have

still suffered the same harm as to the process and plaintiff had notified the

Defendants of his right to file suit regardless of how the Indiana court ultimately

ruled on his motion.

Finally as to ―loser‖ analysis, this Court ruled in Nesses v. Shepard, 68 F.3d

1003 (7th Cir.,1995) that a plaintiff who

claims, as he does, that people involved in the decision violated some

independent right of his, such as the right (if it is a right) to be judgedby a tribunal that is uncontaminated by politics, then he can, withoutbeing blocked by the Rooker-Feldman doctrine, sue to vindicate thatright and show as part of his claim for damages that the violationcaused the decision to be adverse to him and thus did him harm [casesomitted]. Otherwise there would be no federal remedy for a violation of federal rights whenever the violator so far succeeded in corrupting thestate judicial process as to obtain a favorable judgment [cases omitted].



30

This result would be inconsistent with cases in which, for example,police officers are sued under 42 U.S.C. § 1983 for having fabricatedevidence that resulted in the plaintiff's being convicted in a state court.

Id . at 1005. The putative ―loser‖ at bar claims violations of his core First

Amendment rights, among other torts cognizable as civil rights violation, alleging

that the process was skewed by ideology and that it visited him with reputational

damages affecting him far beyond the borders of Indiana. Plaintiff also alleges the

fabricating of so-called (and so-received) evidence against him resulting in

reputational and professional damages in the future, again far beyond the

jurisdiction of the Indiana Supreme Court. Nesses seemingly allows Plaintiff at bar

to claim as the state court decision adverse to him as harm. Plaintiff at bar does

not so claim, rather claiming damages independent of that order, and ongoing

damages arising out of actions taken along route to that order.

b. Plaintiff does not complain of injuries visited upon him by a state court judgment .

Plaintiff nowhere pleads the actual denial of his certification as to character and

fitness as a damage. Plaintiff rather complains of unconstitutional discrimination

(i.e., viewpoint evaluation and religious testing) and torts (i.e., billing fraud and

deception in contracting) visited upon him while he was processed through a system

that claims autonomy from the absolutely immune Indiana Board of Law

Examiners.



31

The United States Supreme Court has repeatedly utilized the Seventh

Circuit‘s GASH Associates v. Village of Rosemont , 995 F.2d 726, 728 (7th Cir.1993)6

to demonstrate the correct analysis under Rooker-Feldman . The Gash panel

reasoned that "[i]f a federal plaintiff 'present[s] some independent claim, … then

there is jurisdiction and state law determines whether the defendant prevails under

principles of preclusion." ' Id. The GASH Court included the following important

counterbalance to ―inextricably intertwined‖ analysis in the above quote: ―albeit [a

claim] that denies a legal conclusion that a state court has reached in a case to

which he was a party.‖ Id.

Plaintiff brings to the bar independent claims that were essentially ignored

in the state court system – not claims asking the District Court to review, address

or reject legal conclusions of the Indiana authorities. Even if one posits that

Plaintiff asks the District Court to reject Indiana‘s ultimate conclusion that he is

not ―bar worthy‖ until, at the earliest, 2014 – and he does not so ask – yet even if he

did so ask that of the District Court then GASH would yet be firm ground from

which to reject Rooker-Feldman abstention. The narrow and specific ―motion

hearing‖ before the IBLE did not constitute proceedings of a nature that could have

found for Plaintiff and awarded damages for civil rights violations and torts

occurring before the state court ruled against his bar application. GASH is

dispositive as to the Rooker-Feldman analysis.

6 GASH has been cited over 770 times. GASH was cited approvingly by both the Exxon

Mobil and Skinner Courts.



32

c. Plaintiff does not complain of any injuries arising after January 22, 2009

In Centres, Inc. v. Town of Brookfield, 148 F.3d 669, 702-03 (7th Cir.1998)

this Court ruled that, "a federal claim alleging injury caused by a state court

judgment must be distinguished from a federal claim alleging a prior injury that a

state court failed to remedy," for "[i]njury due to a state court decision [is] the

essential touchstone in determining the applicability of the Rooker-Feldman

doctrine." All relief sought in the instant litigation is sought against JLAP and their

assigns. All claims pursued are pursued against JLAP and their assigns. JLAP and

their assigns lost jurisdiction over Applicant 24148 on January 22, 2009, when then

remanded him back to the IBLE with the tender of Dr. Bowman‘s biased report. The

state court order at bar issued November 16, 2009. All of the claims at bar may be

candidates for the category ―state court failed to remedy,‖ but not one of the claims

at bar are candidates for the category ―injury caused by a state court judgment.‖

This is dispositive as to the Rooker-Feldman analysis.

d. Plaintiff does not invite the district court to either re view or reject another court’s conclusion.

The instant litigation does not ask the District Court to rule as to the propriety

of the Indiana Supreme Court‘s final conclusion as to Applicant 24128‘s bar-

worthiness, for that conclusion is simply irrelevant to the current action.7

7 Plaintiff rather asks this Court to consider a bar applicant of traditional theological bent

who may be subject to the interrogations of JLAP‘s mental health authorities and JLAC‘sdeaf ear to constitutional concerns at the present. See Plaintiff‘s prayers for equitable relief,ECF 1.



33

This Honorable Court rightly built upon the GASH reasoning even before

that was fully approved by the Supreme Court, noting in pre-Trifecta Rooker-

Feldman analysis that ―the ―pivotal inquiry is ‗whether the federal plaintiff seeks to

set aside a state court judgment or whether he is, in fact, presenting independent

claims.‘‖ Long v. Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir.1999)(citing

Kamilewicz v. Bank of Boston Corp., 92 F.3d 506, 510 (7th Cir.1996). Using Long ,

the instant Plaintiff seeks to have no state court judgment set aside – or even

reviewed.

e. The District Court Conceded that the Core of Rooker-Feldman is Inapplicable in this Instance

In a finding that should have proven dispositive, the District Court

determined that the Plaintiff ―is not asking the Court [ …] to review the Indiana

Supreme Court‘s order.‖ ECF 63, p.17. The brackets above replaced the word

―directly.‖ The District Court seemed to fear being pulled into an ―indirect‖ review of

the Indiana Supreme Court, noting that ―the Court cannot allow artful pleading or

argument to obscure what the practical effect of any potential judgment would be –

a review and modification of the Indiana Supreme Court‘s final order.‖ Id.

It cannot be stressed enough that the instant Appellees (Defendants below)

were not parties to In Re Applicant 24128. It cannot be stressed enough that the

harms pled in the instant complaint were not the focus of the appeals of In Re

Applicant 24128 . It cannot be stressed enough that neither the Indiana Supreme

Court nor the United States Supreme Court were positioned to award the Plaintiff

the relief he herein seeks incident to In re Applicant 24128 . It cannot be stressed



34

enough that the Indiana Supreme Court would be free to shrug off an order of the

District Court finding that Plaintiff‘s civil rights were violated by the Defendants at

bar during the processing of In re Applicant 24128 since that final order employed

Applicant‘s direct testimony to the Hearing Panel, and not any acts of the

Defendants at bar, to justify the only clearly stated reason that Applicant 24128

was unqualified to enter the Indiana bar .8

Nowhere does the instant litigation ask the federal court to pass judgment on

the Indiana Supreme Court‘s dedication to legal positivism, let alone reject or cure

the same.

Mere ―artful‖ argument and pleading does not mask a direct attack on the

Indiana Supreme Court‘s ruling against Applicant 24128 in the instant litigation.

There is no such attack at bar, artful or otherwise, as is revealed on the face of the

verified complaint and in the relief that it does and does not seek.

6. TheDistrictCourtErredinConcludingthatRooker- Feldman’s“InextricablyIntertwined”DoctrineAppliedinthisInstance The District Court has served the appeal well by sharply focusing the Rooker-

Feldman analysis on the question of whether Plaintiff‘s ―claims are ‗inextricably

intertwined‘ with the Indiana Supreme Court‘s determination to deny his petition

8 ―[Applicant 24128 ] testified [as] to his obligation to disobey laws that contradicted hisreligious beliefs under certain circumstances. [He further] indicated that he would not obey

certain court orders and judgments that he believed to be unjust. [It is the policy of the

Indiana court] that a member of the Indiana bar must obey Indiana law and federal law,

even when doing so violates an attorney‘s conscience, and that an avowed willingness not to

do so is disqualifying.‖ ECF 52-2, motion hearing panel‘s report at pp.29-30.



35

for review.‖ ECF 63, p.14. Given the recent trajectory of the law governing Rooker-

Feldman abstention the instant facts afford this Honorable Court the opportunity to

further define this important judicial doctrine.

Justice Marshall explained the rule as follows:

While the question whether a federal constitutional challenge isinextricably intertwined with the merits of a state-court judgment maysometimes be difficult to answer , it is apparent, as a first step, that thefederal claim is inextricably intertwined with the state-court judgmentif the federal claim succeeds only to the extent that the state court wrongly decided the issues before it . Where federal relief can only be

predicated upon a conviction that the state court was wrong , it isdifficult to conceive the federal proceeding as, in substance, anythingother than a prohibited appeal of the state-court judgment.

Pennzoil Co. v. Texaco, Inc ., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)

(Marshall, J., concurring)(emp.add.).

It is likely that this Penzoil concurrence is the lubricant facilitating much of

the Rooker-Feldman mission creep of which the High Court‘s post-Penzoil Trifecta

warns.9

If ―greased‖ by any and all tangential relationships, then almost every

federal case that is subject to issue and claim preclusion analysis would first --

before preclusion principles could roll forward – slide into ―inextricably intertwined‖

territory. Such a fast and loose reading of Rooker-Feldman is the very concern

raised by most all of the Justices of the United States Supreme Court since Exxon

Mobil .

9 Justice Marshall had joined the Feldman majority. He retired from the bench in 1991,

being replaced by Justice Thomas, who has never authored or joined a decision advancingthe Rooker-Feldman doctrine.



36

Issue and claim preclusion need not be ground down if ―intertwined‖ analysis

is undertaken per a strict reading of Justice Marshall‘s Penzoil directives, as that

such a reading maintains a cushion between Rooker-Feldman and preclusion

analysis. This cushion proved difficult maintain before the Trifecta, as is revealed in

Judge Richard Cudahy ‗s labeling this abstention doctrine as ―a somewhat

metaphysical concept‖ in Taylor v. Fed. Nat‘l Mortg. Ass‘n, 374 F.3d 529, 533 (7th

Cir. 2004). Yet even in such existential quandary the Court gave way to the tried

and true reasoning of GASH – itself the harbinger of the Trifecta .

To keep Rooker-Feldman both concrete and cushioned from issue and claim

preclusion analysis, we must ask one question -- which Justice Marshall rolled out

in two different iterations:

a. Does the federal claim succeed only to the extentthat the state court wrongly decided the issues before it?

In this case that inquiry is answered with a definite ―No.‖ The Indiana

authorities may have rightly decided that Applicant 24128 was so lacking in good

moral character, basic civility and/or fitness to practice law that he should have

been stalled for three years and then denied re-application for five years regardless

of Indiana law, any underlying unconstitutionality or the weighing of religious and

political considerations by the Defendants at bar. A finding that Defendants

Bowman, Ross, Sudrovech and Harrell conspired to violate Plaintiff‘s civil rights

would not, ipsi dixit, translate into the finding that Indiana lacked sufficient reason

to erect a five year bar to the Applicant after three years of processing. Thus, as

argued supra , the District Court could have issued all relief sought and the Plaintiff



37

at bar would remain a fifteen-year-licensed attorney unable to access the Indiana

courts.10

Asking this same question in reverse, Justice Marshall inquired:

b. Is federal relief predicated only upon a conviction that the state court was wrong?

Again, the answer is no. As the complaint makes clear, there is no need to

consider the final denial of bar applicant 24128 to determine that he was subjected

to a process failing to pass constitutional muster - at least as far as mental health

authorities were concerned.

Indeed, the Plaintiff at bar could have -- and threatened to – bring this very

litigation in response to his processing through JLAP long before the Indiana

Supreme Court denied his motion to join its bar on November 16, 2009.11 Facts ¶¶

10, 19, 50. Thus this is not a case of Mr. Rooker asking the federal court to reverse

the court that refused to seat him in the bar. That case pitted the ―state‖ court

against the federal court in a direct challenge. Plaintiff at bar brings no such

challenge and accepts that he is not to become an Indiana licensed attorney until

2014 and not even then unless he first loses his religion. Plaintiff at bar merely

seeks to: (1) clear his good name; (2) Remove a serious impediment to licensure

elsewhere (in greener, more tolerant pastures); and (3) Protect his co-religionists

10 Without a finding that his civil rights were violated through the process Plaintiff at bar

will be hard pressed to be admitted to any state bar save the one to which he alreadybelongs. With a ruling that his constitutional rights were violated by Bowman, Ross,Sudrovech or Harrell, Plaintiff may be put back in the position in which he was after theNCBE 2006 approval but before JLAP ―processed‖ him. Facts ¶¶ 13 – 17. 11 The United Nations International Day of Tolerance.http://www.un.org/en/events/toleranceday/



38

(and Catholic progeny) from unbridled statism in days to come by obtaining a ruling

from the federal court that: (a) Certain constitutional rubrics were trampled, and;

(b) Certain positive laws were violated by the social workers and mental health

authorities at bar. (Among additional relief sought, none of which is calculated to

overturn the Indiana Supreme Court‘s final judgment as to the legal unworthiness

of Applicant 24128. Facts, ¶10).

Conclusion as to the Rooker-Feldman Issue

Even before the High Court‘s recent Trifecta, this Honorable Court‘s

reasoning in GASH, Ritter, Centres, Neeses and Long pivoted the guns of Rooker-

Feldman away from the instant docket. Plaintiff at bar‘s federal claims allege

injuries that simply could not be adequately presented during appellate review.

Plaintiff at bar‘s federal claims seek remedies that could not issue out of a hearing

on bar application. Plaintiff presents this Honorable Court with issues and prayers

not cognizable in the Indiana bar application process. One cannot be a ―loser‖ in a

fight that one never waged. Plaintiff does not ask this Honorable Court to undo the

loss that he suffered, that is, does not ask this Honorable Court to reverse the

decision of the Indiana Supreme Court as to his licensure in the Hoosier State. He

merely asks this Honorable Court to rule on the propriety of the allegedly

unconstitutional and allegedly conspiratorial actions of JLAP‘s management team

and their hand-picked ―mental health authorities.‖

By so praying the Appellant has not run aground upon the narrow shoals of

Rooker-Feldman abstention.



39

C. Defendants are not entitled to absolute immunity.

Appellant finds little to take issue with in the District Court‘s presentation of

the Black Letter law defining the historic witness immunity doctrine, mostly

because the District Court set forth little as to said law. Appellant disagrees with

the Court‘s application of that doctrine to the instant facts.

1. The District Court erred in granting Appellees Dr. Ross and Dr. Bowman expert witness immunity.

After a review limited to the Verified Complaint the District Court

inexplicably reasoned – better assumed -- that ―the involvement of Defendants

Bowman and Ross in this case was as expert witnesses acting at the Indiana

Supreme Court‘s direction.‖ ECF 63, p.27. (But see ECF 1, ¶¶ 27, 122) The District

Court erred in granting Drs. Ross and Bowman court appointed expert witness

status – and thus absolute immunity – because: (1) Nothing in the instant record

reveals the doctors at bar to be court appointed, and; (2) Neither Dr. Bowman nor

Dr. Ross (nor social worker Sudrovech) can claim the status of witness.

Defendants Harrell and Sudrovech failed to authenticate Defendants

Bowman and Ross and/or their reports as expert witness material when the reports

were created. Neither should the federal court do so in hindsight.

2. Absolute Immunity is to be granted quite sparingly

Absolute immunity is the exception rather than the rule. It is a powerful

prophylactic that is traditionally reserved for those actors ―intimately associated

with the judicial phase of the criminal process.‖ Imbler v. Pachtman , 424 U.S. 409,



40

430 (1976)(judges performing judicial functions); see also Stump v. Sparkman , 435

U.S. 349 (1978)(same); Butz v. Economou , 438 U.S. 478 (1978)(government officials

engaged in adjudicative functions).

There is precious little ―judicial phase‖ and no ―criminal process‖ in the

record at bar.

The Supreme Court has shown itself reluctant to extend absolute immunity

to any and all government actors and their assigns. The Supreme Court has rather

established as the ―presumption … that qualified rather than absolute immunity is

sufficient to protect government officials in the exercise of their duties.‖ Burns v.

Reed, 500 U.S. 478 (1991). The Burns Court gathered precedent to set forth the

following guidance for future decisions on immunity:

Decisions in later cases are consistent with the functional approach toimmunity employed in Imbler. [Numerous cases omitted.] Thesedecisions have also emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified

for the function in question. [ ] The presumption is that qualified,rather than absolute, immunity is sufficient to protect governmentofficials in the exercise of their duties. We have been "quite sparing" in our recognition of absolute immunity, [ ]and have refused to extend itany "further than its justification would warrant." [Citation omitted.]

Burns , 500 U.S. at 486-87 (emp.added).

While Defendants Sudrovech and Harrell will undoubtedly argue (as they did

below) that their work with the Judges and Lawyers Assistance Program

recommend them for the prophylactic of absolute immunity, their level of immunityis set by state statute and is not open to expansion by this Honorable Court.

Defendants Sudrovech and Harrell are immune from civil suit only for ―official acts

done in good faith in furtherance of the Committee‘s work.‖ Admis. Disc. R. 31. §10.



41

Defendants Bowman and Ross sought, and gained, absolute immunity from

the District Court. Such status was assumed, without any analysis of function. To

keep this status under de novo review these report-writing, absolute immunity-

seeking Defendants ―bear[ ] the burden of showing that such immunity is justified

for the function in question.‖ Id. Given the nature of their reports this burden is

heavy.

3. WitnessImmunityisasubspeciesofAbsoluteImmunity

Briscoe v. LaHue, 460 U.S. 325 (1983) (the leading case on government

witness immunity) teaches that:

The immunity of parties and witnesses from subsequent damages

liability for their testimony in judicial proceedings was wellestablished in English common law. Some American decisions requireda showing that the witness' allegedly defamatory statements wererelevant to the judicial proceeding, but once this threshold showinghad been made, the witness had an absolute privilege. The plaintiff could not recover even if the witness knew the statements were falseand made them with malice. ...

Briscoe , 460 U.S. at 332-333 (int. cites omitted and emp.added.)

a. Briscoe v. LaHue does not apply to the expert witness reports at bar

While the Briscoe decision is indeed seminal in the realm of witness

immunity, it must be noted that it is closely cropped as to applicability -- ―testimony

in judicial proceedings.‖ In footnote five Justice John Paul Stevens expressly limited

Briscoe‘s reach to courtroom drama:

The petition for writ of certiorari [before us] does not raise the questionof immunity for testimony at pretrial proceedings such as probable cause hearings, nor does petitioners' brief discuss whether the sameimmunity considerations that apply to trial testimony also apply totestimony at probable cause hearings. We therefore do not decidewhether respondent LaHue is entitled to absolute immunity forallegedly false testimony at two probable cause hearings regardingpetitioner Briscoe.



42

460 U.S. at 328 (emp add). The Briscoe ruling is narrow. It merely resolves

―whether 42 U.S.C. § 1983 authorizes a convicted person to assert a claim for

damages against a police officer for giving perjured testimony at his criminal trial.‖

Id. Briscoe merely established that the in-court testimony of a witness in a criminal

trial is protected by absolute witness immunity. See House v. Belford , 956 F.2d 711,

720-271 (7th Cir.1992)(applying Briscoe in such a context).

Briscoe and its progeny rest upon the assumption that absolute immunity

protects witnesses who testify under oath in adversarial proceedings before judicial

officers during proceedings in which full appellate review is available. Such are the

rigors attending criminal trials – albeit not probable cause hearings or proceedings

with even less formality than probable cause hearings. (I.e., bar admission motion

practice.)

Noting the difference between Briscoe and its progeny and the facts at bar is

crucial to analyzing Defendants‘ claim of witness immunity. This is because none of

the Defendants at bar have submitted sworn testimony or in any fashion subjected

themselves to the pains of perjury – as the Plaintiff has done twice (verified

complaint (ECF 1) and supplemental affidavit (ECF 57, appendix 2).

Thus the facts at bar offer unfavorable terrain to those advancing a Briscoe -

based argument. Neither Indiana statutory law nor applicable case law (state or

federal) can be marshaled to justify their claim of absolute immunity for the

informal reports at bar. The decision to extend this parallel to Sovereign Immunity



43

instead turned upon Dr. Ross' and Dr. Bowman's claims of sovereign status as

―mental health authorities.‖12

b. Drs. Elizabeth Bowman and Stephen Ross did not

function as court-appointed expert witnesses.The mere fact that Drs. Ross and Bowman are doctors, or mental health

authorities, or have the insider status of being listed on a government‘s ―preferred

provider‖ list or enjoy ―cooperating clinician‖ status with JLAP due to their brand of

―orthodoxy‖ or friendship with Defendant Harrell or are otherwise pre-approved

through some nontransparent process granting them status superior to Dr.

Flueckiger (see verified complaint, ECF 1, ¶¶ 117-122) should not prove dispositive

as to the question of witness immunity. All of those criteria are merely the makings

of status -- none relate to actual function that those with the status perform. As this

Court noted in Giffin v. Summerlin, 78 F.3d 1227 (7th Cir.1996), ―an immunity

analysis depends upon functional categories rather than upon the status of a

witness.‖ Id. at 1231. In other words, one must consider what the ―expert‖ does, not

who the expert claims to be.

12

Dr. Bowman found Plaintiff mentally ill, due, in part, to his alleged lack of respect for―mental health authorities.‖ See Facts ¶52(g) . ―The doctor charged that Plaintiff ‗expresseddevaluing attitudes toward pharmacologic or psychotherapeutic mental health treatment‘and made ‗sarcastic remarks devaluing authority of all types, especially mental healthauthority and the abortion industry.‘‖ (emp added). Plaintiff did not comprehend a duty tovoice ―valuing‖ attitudes toward Freud, Jung and the abortion industry as a prerequisite toa finding of acceptable mental health by the government and mental health authorities atbar. Plaintiff rather labored under the misconception that he could do no wrong against theState by confessing his chosen Creed and Catechism.



44

Such functional analysis does not recommend witness immunity under the

facts at bar since the doctors and government social workers at bar did not function

as expert witnesses under Indiana law.

i. OathsorAffirmationsarethesinequanonastowitnessfunctions

As is fairly typical in all Western legal systems founded since Greco-Roman

times, witnesses in Indiana courts are mandated to make an oath or affirmation.

The Indiana Court‘s operating procedures codify this rule in an attempt to ensure

that all recognize its searing search for the truth. The Court Rules require that

―[b]efore testifying, every witness shall swear13 or affirm to testify to the truth …‖

Indiana Rule of Evidence 603 (emp.add.) This requirement is further codified at

Ind.Stat.Ann 34-45-1-2, where the previously quoted sentence is followed by the

requirement that ―the mode of administering an oath must be the most consistent

with and binding upon the conscience …‖14

An oath is sworn to. An affirmation is affirmed. They have this in common:

both subject the person making it to the penalties for perjury and thus meet the

criteria our justice systems seek for testimonial evidence.

According to Rule 603, ―every witness shall swear or affirm to testify to the

truth, the whole truth and nothing but the truth‖ prior to the reception of their

testimony. All officers of the court recognize the reason for this solemnization – it

13 According to Black's Law Dictionary (9th ed.2009), ―swear‖ means to ―administer an oath

to (a person)‖ or to ―take an oath.‖ 14 Nothing in Black's Law Dictionary definition of ―oath‖ or ―affirmation‖ fairly describesthe reports at bar.



45

subjects the testifier to the pains of perjury and awakens in them the need to be

very careful in their testimony.

Simple (and usually uncontroverted) logic reveals that an Indiana witness

who fails to swear or affirm can offer no testimony to the judicial system.

ii. Theinstantreportsarebareastooathsoraffirmations

No such oath – in any format, religious or secular – can be located in the

record as to Defendants Ross, Bowman or Sudrovech. Their reports, the very ones

that are to receive the benefit of absolute immunity (immunity no matter their

alleged fraud or discriminatory content) according to the lower court (without

reviewing the same) are devoid of a jurat15 of the type typically associated with

testimonial documents (such as affidavits, depositions or commitment orders).

Dr. Ross, in fact, demonstrates just the opposite of a ―jurat‖ when he offers,

not on oath, to make any change to his report that the government handler

requests: ―Should you [Tim Sudrovech] or Mr. Brown notice any errors in this report, please

contact me. I am open to a revised version of this report.” Facts, ¶18.16

15 Nothing in Black's Law Dictionary‘s definition of ―jurat‖ fairly describes any portion of the reports at bar.16 As the District Court noted in its recitation of the facts, Plaintiff attempted to persuade

Dr. Ross to make changes to his report to no avail. ―The Plaintiff mailed letters on June 12and June 24, 2008, to Defendant Ross, and subsequently copied them to DefendantSudrovech, requesting that Defendant Ross make changes to his report … [that] expressedconcern over the content (specifically the religious content) of Defendant Ross‘spsychological evaluations. Defendant Ross did not make any changes to his report.‖ ECF 63at p.4. Also as the District Court noted, Dr. Ross‘ challenged pseudo-evaluation wassubsequently rejected by every doctor who subsequently evaluated the Plaintiff, includingDoctors Sass, Flueckiger, Alexy, and even Bowman.‖ Id. Such career-crashing imprecisionis a liberty that experts submitting reports subjected to oaths or affirmation would be



46

Such malleability is the very opposite of what justice seeks from testimonial

evidence -- one fine reason for the formality of a jurat.

Dr. Bowman demonstrates just the opposite of a ―jurat‖ when she includes in

her report hearsay from a fellow ―mental health authority‖ that is contradicted in

substance by the declarant‘s own official report. (And the substance is most

consequential – a questions of whether the Plaintiff is mentally ill or not.) Facts, ¶

52(h&i)

Such potential fraud is the very opposite of what justice seeks from

testimonial evidence -- this is simply the best reason to demand a jurat.

Social worker Sudrovech demonstrates just the opposite of a ―jurat‖ when he

travels far beyond the limits of the letters behind his name to use the religiously-

informed Ross report and ideologically-biased, hearsay-laden and facially

fraudulent Bowman report to opine, in psychiatrist-like terms, as to what he

divined those reports to portend for the soul an applicant that he never met once --

be his choice.17 See Facts ¶¶ 39-41.

Such professional overreaching is the very opposite of what justice seeks from

testimonial evidence -- jurats are intended to minimize such unexamined sophistry.

Devoid of an oath or affirmation, the reports of Sudrovech, Bowman and Ross

cannot withstand scrutiny as either affidavits or depositions. They were not

loathe to take – which may explain the lack of jurat and/or testimony at bar if Plaintiff‘stheory of the case is correct. 17

As the District Court noted, social worker Sudrovech repeatedly refused Plaintiff‘srequests to meet and failed to assign Plaintiff a mentor through JLAP, ECF 63, p. 3, raisingin inference of malpractice, at a minimum – and an allegation of bad faith processing.



47

authenticated and presented on the witness stand. Facts ¶¶ 23, 34, 45. They were not

subjected to cross-examination. Facts ¶¶ 22, 33, 44. They were not the subject of any

stipulation. Facts ¶¶ 24, 35, 46. (Just the opposite, in fact.) When viewed functionally

it is readily apparent that these reports are merely the opinions of non-sworn

persons (who are allegedly conspiring against the Plaintiff at bar) who claim

preferential status in a system with very few evidentiary safeguards -- allegedly on

purpose. As such the status-claiming reports at bar are not the functional stuff of

which absolute expert witness immunity is made.

iii. NoneoftheDefendantsarewitnessesaccordingtolegalcustom

Witnesses, according to Black‘s Law Dictionary, are defined as those who give

―testimony under oath or affirmation‖ either (1) ―in person‖ or (2) ―by oral or written

deposition‖ or (3) ―by affidavit.‖

In other words, those who tender testimony while refusing to submit to an

oath or affirmation can be called by a plethora of proper nouns, but ―witnesses‖ are

not on that list according to the well-seasoned and well-reasoned legal customs of

our American order.

There is no evidence before the Court that Drs. Bowman or Ross presented

reports to the Judges and Lawyers Assistance Program in person, and in fact they

did not to the best of Plaintiff‘s knowledge. They instead tendered unsworn reports

that were merely advisory documents, at best, and better viewed as preparation for

live testimony that simply never took place – and so cannot ―back date‖ the reports

with the grace that is witness immunity.



48

iv. NoneoftheDefendantstestifiedaccordingtolegalcustom

Common legal parlance likewise reveals the Sudrovech, Ross and Bowman

reports to be nontestimonial. ―Testimony,‖ according to Black‘s Law Dictionary, is

―evidence that a competent witness under oath or affirmation gives at trial or in an

affidavit or deposition.‖ As the unsworn and informal reports of Bowman, Ross and

Sudrovech demonstrate, none submitted such testimony, and thus none testified.18

Once again, Indiana‘s own court rules require that ―[b]efore testifying, every

witness shall swear or affirm to testify to the truth …‖ Rule 603 (emp.add.) Simple

logic reveals that those who fail to swear or affirm to testify to the truth cannot be

labeled ―witness‖ and cannot be said to have ―testified.‖ Testifying under oath is the

sine qua non for ―witness‖ status under Indiana law. Thus none of the Appellees can

claim ―witness‖ status under Indiana law, for they did not function as witnesses.

They did not – simply could not - fulfill a testimonial function.

Since Defendants Bowman, Ross and Sudrovech were unsworn nonwitnesses

offering no testimony they simply cannot be granted expert witness immunity by

operation of Indiana law and longstanding legal custom.

18 This is in keeping with both Indiana statutory law and case law established by the

Indiana Supreme Court, for even police reports are inadmissible hearsay under Indianalaw. Duncan v. Duncan , 764 N.E.2d 763, 767 (Ind.Ct.App.2002); See also Evid.R. 101(c)(2)and Evid.R. 803(8) (stating that police reports are specifically excluded from the hearsayexception regarding public records).



49

v. Theinstantrecordisbareastotestimonialintent

According to Ind.Stat.Ann 35-44-2-1, perjury attaches only to statements that

are ―under oath or affirmation.‖ Id ., (a)(1). Indiana case law agrees -- a perjury

prosecution can proceed only if the witness statement was made under oath or

affirmation. Paschall v. State , 717 N.E. 2d 1273 (Ind.App.1999); see also House v.

Belford , 956 F.2d 711, 720-21 (7th Cir.1992)(immunity analysis turning upon

linkage of sworn testimony and risk of perjury).

Since these merely advisory documents evince no oath or affirmation they

visited no risk of perjury upon the authors. Thus Drs. Ross and Bowman were free

to mislead in their ―expert statements‖ without worry as to a potential class D

felony since they were not appearing as ―expert witnesses‖ for the government – but

rather merely as colluding clinicians. Sudrovech, Ross and Bowman can tender such

documents on 10,000 bar applicants – and even tender reports full of professional

prevarication – and never face a single charge of perjury. While the Plaintiff at bar

had everything ―on the line‖ the experts that Defendants Sudrovech and Harrell

hand picked had nothing ―on the line,‖ had no ―skin in the game.‖

Only statements made under oath as part of the judicial process are

testimonial. The reports of Ross, Bowman and Sudrovech at bar reveal no intent to

be testimonial, and cannot be considered testimonial. Thus these authors were not

witnesses, and thus the court erred in granting them expert witness status.

To be succinct: No risk of perjury, no testimony, no witness -- Ergo no witness

immunity.



50

vi. Theinstantrecordisbareastothequalificationofexperts

Moreover, since Dr. Elizabeth S. Bowman admits to including hearsay in her

unsworn and unqualified report,19 it simply cannot be the report of an expert

witness by operation of law. This is because the inclusion of such hearsay has a

legal consequence. Pursuant to Indiana Evidence Rule 703, the qualification as an

expert witness under Indiana Evidence Rule 702 is required if the witness' opinion

is based on information received from others. Farrell v. Littell , 790 N.E.2d 612, 617

(Ind.Ct.App.2003) (quoting 13 Robert Lowell Miller, Jr., Indiana Evidence § 701.105

at 321 (2d.1995)).

No such evidence of a qualification process20 is found at bar as to the

admittedly-hearsay laden report of Dr. Bowman. Facts ¶ 38 Since the nontestifying

Dr. Bowman was not qualified as an expert despite the clear need to do so, neither

Dr. Bowman nor her report legally qualified for ―expert witness‖ designation in the

instant litigation.

vii. Theinstantrecordisbareastothecrucibleofjudicialprocess

To put it in terms the High Court uses when weighing witness immunity, the

so-called expert witness testimony at bar was never submitted to ―the crucible of the

19 In her answer, Defendant Bowman admits to including a pernicious type of hearsay inher report -- that being hearsay directly contradicting the written report of the declarantDr. Alexy as to the ultimate issue under investigation. Facts ¶ 52 (h&i) 20

This qualification process includes, inter alia , compliance with Indiana Evidence Rule703, allowing that "[e]xperts may testify to opinions based on inadmissible evidence,provided that it is the type reasonably relied upon by experts in the field." The record at barreveals no such inquiry, thus no qualification of Dr. Bowman‘s admittedly hearsay-ladenreport and thus no foundation from which to afford the report expert witness immunity.



51

judicial process so that the fact finder may consider it, after cross-examination,

together with the other evidence in the case to determine where the truth lies.‖

Imbler v. Pachtman , 424 U.S. 409, 440 (1976) (White, J., concurring in the

judgment). A functional analysis reveals that the process generating the reports of

Sudrovech, Ross and Bowman is simply too informal to generate expert witness

reports graced with absolute immunity. As such the reports at bar should not

benefit from expert witness immunity.

4. Seventh Circuit Precedent does not Recommend Absolute Immunity under the facts at bar

Giffin v. Summerlin , 78 F.3d 1227 (7th Cir.1995) well supports the

claim that neither Sudrovech, nor Bowman nor Ross were expert witnesses at

bar. In Giffin this Court addressed, ―as a threshold matter,‖ whether Dr.

Summerlin was ―entitled to absolute immunity from civil liability for his

deposition testimony as a witness in the Pennsylvania litigation.‖ Id.

Note that there was no question as to whether Dr. Summerlin had given

testimony, for his challenged statement was uttered during a deposition. Since it

was a deposition used at a hearing Dr. Summerlin was a witness under Indiana law

– unlike the mental health authorities at bar.

Giffin does not extend witness immunity to ―mental health authorities‖

tendering unsworn and nontestimonial reports, it rather grants the same absolute

immunity to deponents as those giving live testimony: ―The policy considerations

underlying witness immunity for testimony in open court apply with equal force to

other forms of testimony such as depositions and affidavits.‖ Id. at 1231.



52

The policy considerations under review in Giffin included the presumption

that witnesses subject themselves to the potential pains of perjury. This was made

certain when the Giffin Court rested its opinion upon Indiana law stating that,

―Public policy requires that ‗witnesses, who are a necessary part of the judicial

machinery, be privileged against any restraint, excepting that imposed by the

penalty for perjury. ‖ Giffin ,78 F.3d at 1230, quoting Rhiver v. Rietman, N.E.2d 245,

248 (1970) (quoting Baldwin v. Hutchison, 35 N.E. 711, 712 (1893)). As argued,

supra, this risk of perjury is a sine qua non for witness status under Indiana law.

Plaintiff has put himself at risk as to perjury – none of the Defendants have.

The Giffin Court was clear as to the boundaries it placed upon expert witness

immunity and why those boundaries were set:

The threat of a lawsuit for damages can have the same intimidatingeffect on a witness who testifies by deposition as one who testifies incourt. Testimony by deposition is an important part of the judicialprocess and merits the same protection as in-court testimony .

78 F.3d at 1231 (emp.add)

It is important to note that the Giffin Court could have ruled broadly and

opened the floodgates to allow nontestimonial reports not subjected to the rigors of

an oath (or affirmation) and cross-examination the privilege of absolute immunity --

as long as they were authored by medical professionals. The Giffin court did not so

rule. The present appeal offers this Honorable Court the opportunity to so extend

witness immunity to all who claim the status of ―mental health authorities.‖ (Or, by

extension, any medical authorities, or any authority of any professional brand –



53

such as the ever-so-honest attorneys -- or anyone labeled an authority by a

government social worker, etc .)

Appellant urges this Honorable Court to not so open the floodgates to

counting any and all professional writings as testimonial, evidentiary and

absolutely immune from liability. In the present social milieu, what used to be

called ―filthy lucre‖ entices myriad professional experts to ―pimp‖ their specialties

and promise the very end result that those paying the fee (or holding social power)

desire. Immunizing the reports of such ―hired guns‖ -- reports not subject to cross

examination and the pains of perjury -- could set the search for truth and justice

back centuries, even back to the dark days of Star Chamber. Such blanket

immunity would empower the rich and governmental to ―buy up‖ or ―order up‖ a

stable of never-liable ―experts.‖ Such a system of, in essence, conspiratorial (i.e.,

―backroom fixed‖) trials could quickly render the concept of equal justice under the

law a quaint artifact of days gone by.

Conclusion as to the Witness Immunity Issue

The question of whether the reports at bar (Ross, Bowman and Sudrovech)

should be granted absolute immunity as expert witness reports has been analyzed

under myriad statutes and cases. All come up short.

From a subjectivist perspective, the reports do not demonstrate testimonial

intent. (This is especially true of the Ross report.) From a legal-technical

perspective, the reports: (1) Lack the jurat, a standard form for solemnizing

documents deemed to be evidentiary in and of themselves, and; (2) Were never



54

subjected to the rigors of cross-examination. From a consequentialist perspective

the reports: (1) Do not pass muster, since they did not subject the writers to any risk

of perjury, and; (2) Must fail in as much as they build on inadmissible hearsay (the

Bowman and Sudrovech-Bowman reports). From a cultural-historical perspective

the reports all fail to pass muster due to our legal system‘s longstanding bias for

documents in deposition or affidavit format. From a metaphysical perspective the

reports fail due to: (1) The confession of uncertainty (in the Ross report); (2) The

admission of inadmissible (and contradicted) hearsay (in the Bowman report), and;

(3) The mental health opining (well beyond his expertise) by the social worker

Sudrovech. From a Gestalt perspective every one of the four reports is found

wanting in the criteria dubbed the ―crucible of judicial process.‖

Perhaps most of all, no court document (other than the Federal District

Court‘s March 31, 2011 order) knights the reports of Bowman, Ross or Sudrovech as

expert witness reports. In other words, the Distinct Court holds the reports in

greater esteem than the informal process that generated the reports. The District

Court does so in error.

For all of these reasons the District Court erred in granting the reports

written by Bowman, Ross and Sudrovech expert witness / absolute immunity status.

X. Conclusion Seeking Relief

For the reasons set forth herein Plaintiff/Appellant Bryan J. Brown urges this

Honorable Court to reverse the District Court‘s order that ―it lacks jurisdiction to

adjudicate the Plaintiff‘s claims‖ and its decision that ―Defendants are entitled to



55

immunity‖ and to remand this case back to the District Court with all ancillary

questions raised by said Court clearly answered, including the question of official

versus personal capacity obligations given the allegations in the verified complaint.

XI. Certificate of Compliance

Certificate of Compliance with Rule 32(a)

This brief complies with the type-volume limitation of Fed.R.App.P.

32(a)(7)(B) as that it contains 13898 words, excluding those sections

listed in Form 6.

This brief complies with the typeface requirements of Fed.R.Civ.P.

32(a)(5) and the type style requirements of (6) since this brief was

prepared in Microsoft Word using Century 12 as the main text font.

____________________

Bryan J. Brown, Esq.

Respectfully uploaded to the Court’s electronic interface on this, the 13th

day of July, 2011



56

Bryan J. Brown

Kansas Bar No. 17634

Pro se attorney

Counsel of Record, Appellant

827 Webster Street

Fort Wayne, IN 46802

(260) 515-8511

[email protected]

Certificate of Service

I hereby certify that on July 14, 2011,I, Bryan J. Brown, delivered physical copies of Appellant’s Brief to

the following counsel of record via first class mail:

Mark Baeverstad

Andrew Lloyd Palmison

For Defendant Elizabeth Bowman

Rothberg , Logan & Warsco, LLP

505 East Washington Blvd.

PO Box 11647

Fort Wayne, IN 46859-1647

###

Laura L Bowker

Betsy M Isenberg

For JLAP/Supreme Court Defendants

Shepard, Harrell and Sudrovech

Indiana Attorney General's Office - IAG/302

Indiana Govt Center South, 5th Floor

mailto:[email protected]





57

302 W. Washington Street

Indianapolis, IN 46204-2770

###

Sharon L Stanzione

Stephen M. Brandenburg

For Defendant Stephen Ross

11051 Broadway Suite B

Crown Point, IN 46307



Documents

Appellants.brief.112164