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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

Oral Argument Requested

Bryan J. Brown

KS Bar No. 17634Attorneypro se

827 Webster Street

Fort Wayne, IN 46802

(260) 515-8511

[email protected]


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I. Table of ContentsI. Disclosure Statement.......................................................................... Error! Bookmark not defined.II. Table of Contents ............................................................................................................................... 2III. Table of Authorities ............................................................................................................................ 4IV. Statement of Jurisdiction................................................................................................................... 5V. Issues Presented................................................................................................................................ 61. Did the District Court err in finding that it lacked subject matter jurisdiction over the

instant matter due to Rooker-Feldmanabstention? ......................................................................... 6

2. Did the District Court err in extending absolute immunity to putative expert witnesses

who were not subjected to the crucible of the judicial process?...................................................... 6

VI. Statement of the Case ....................................................................................................................... 6VII. Statement of the Facts ...................................................................................................................... 7

A. Past as prologue? Plaintiff/Appellants bar admission motion .................................... 7

B. Collusion in High Places and Fear 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 .............................................................................................................. 16IX. The Argument (in three movements)............................................................................................. 16A. De NovoReview Applies to All Issues at Bar .............................................................................. 17

1. De Novo review of 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...................................................... 21

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

4. The instant appeal is not on all fours with District of Columbia v. Feldman....................... 23

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

b. Feldmans inextricably intertwined doctrinedoes not apply to the facts at bar............ 25

5. Rooker - Feldmans operative core reveals the doctrine inapplicable................................. 28


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a. Plaintiff is not the state-court loserRooker-Feldman anticipates...................................... 28

b. Plaintiff does not complain of injuriesvisited upon him by a state court judgment. ....... 31

c. Plaintiff does not complain of any injuriesarising after January 22, 2009....................... 32

d. Plaintiff does not invite the district court to eitherreview or reject another courts

conclusion.......................................................................................................................................... 33

e. The District Court conceded that the core ofRooker-Feldman is inapplicable in this

instance.............................................................................................................................................. 33

6. TheDistrictCourterredinconcludingthatRooker-Feldmansinextricablyintertwined

doctrineappliedinthisinstance......................................................................................................... 35

a. Does the federal claim succeed only to the extentthat the state court wrongly decided

the issues before it?......................................................................................................................... 37

b. Is federal relief predicated only upon a convictionthat the state court was wrong?...... 37

Conclusion as to the Rooker-Feldman Issue ................................................................................... 38C. Defendants are not entitled to absolute immunity. ...................................................................... 39

1. The Court erred in granting Drs. Ross and Bowman witness immunity. ............................. 39

2. Absolute Immunity is to be granted quite sparingly................................................................ 40

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

a. Briscoe v. LaHue does not apply tothe expert witness reports at bar............................. 42

b. Drs. Elizabeth Bowman and Stephen Ross did notfunction as court-appointed expert

witnesses. .......................................................................................................................................... 43

4. Seventh Circuit precedent does not recommend Absolute Immunity.................................. 51

Conclusion as to the Witness Immunity Issue ................................................................................. 54

X. Conclusion Seeking Relief .............................................................................................................. 55XI. Certificate of Compliance ................................................................................................................ 56XII. Short Appendix ................................................................................................................................. A1

A. Docket Below ........................................................................................................................... A1

B. Court memorandum of March 31, 2011............................................................................. A6

C. Court order of April 20, 2011 ............................................................................................. A37

D. Indiana Supreme Court order of November 16, 2009................................................... A39

E. United States Supreme Court order denying certiorari .............................................. A40


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II. Table of AuthoritiesCases

Baldwin v. Hutchison, 35 N.E. 711, 712 (1893) ............................................................................... 51Briscoe v. LaHue, 460 U.S. 325 (1983)......................................................................................... 40, 41

Burns v. Reed, 500 U.S. 478 (1991). ................................................................................................... 39

Butz 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

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, 562 U.S. -- , 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011) .......... 18, 19, 30

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

Taylor v. Fed. Natl Mortg. Assn, 374 F.3d 529, 533 (7th Cir. 2004) ........................................... 35

The District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 (1983)................................................................................................................................................................. 22

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

dissenting)............................................................................................................................................ 22

Statutes

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


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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, 26, 29

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

Rules

Admis. Disc. R. 31, 10 ............................................................................................................. 12, 23, 40

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 ............................................................................................................................................... 16Fed.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

III. Statement of JurisdictionAppellant 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

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


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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.IV. Issues Presented

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

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

V. Statement of the CaseAppellant adopts in whole the District Courts 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) at

style and parties, 12, 13.

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

Dr. Bowman and Dr. Ross (as well as non-Defendant) Dr. William

Alexy into the record via ECF 57 and ECF 57-1. That affidavit containsmuch detail supporting the witness immunity argument. SeeAppendix

B of ECF 57, pp 37 40. (Non-Defendant Dr. Bryan Flueckigers

report is attached to the complaint. ECF 1).


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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 Courts 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 appealpro se.

VI. Statement of the FactsAppellant adopts in whole the District Courts Factual Background, with the

addition of the following:

A. Past as prologue? Plaintiff/Appellants bar admission motion

10. The following is excerpted from Plaintiffs 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

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


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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 Courts denial of Plaintiffs 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. Plaintiffs 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 ofIn re Applicant 24128. ECF 1, 84, 92

94.


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B. Collusion in High Places and Fear 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

Plaintiffs 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 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

1Timothy 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/Appellant contacted Dr. Ross about his concerns as to the content of

his report, and in specific:

a. Ross nondiagnosis that Plaintiff/Appellants social affect suggests to me

thepossibilityof 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 Browns handwritten work product preserving Browns

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 Browns weltanschauungthrough 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. Brownsreligious beliefs and convictions. ECF 57-1, p.9. (emp. added); ECF 1,

64 79, Legal Claims 12, 13; seePlaintiffs 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 Browns 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 Appellants concerns, to the

IBLE by Defendant 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 Bowmans 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 Browns 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 Browns actions in conformance with

his religious beliefs: [Browns] conscience has been shaped by his Roman

Catholic beliefs. [Browns] moral integrity has been expressed in a manner that

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

[Browns] 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

Browns 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 Browns 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 Sudrovechs 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. SeeECF 32, 172-177

38. The Bowman report was tendered to the IBLE by Sudrovech on January 22,

2009. ECF 57-1, pp. 13-14

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

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.


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Bowmans 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 diagnosed that JLAP agrees to some degree

with Dr. Bowmans conclusion that Mr. Browns 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 he would be. ECF 57-1, p. 14 (emp.add.)

41. Sudrovech similarly interpreted Dr. Ross report in his filing with the IBLE.

ECF 57-1, pp. 1-2

42. Neither the Sudrovech-Ross report (i.e.,Sudrovechs report attached to the

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

Bowman (i.e.,Sudrovechs 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 alsoECF 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. Defendant 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 Committees work.

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

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


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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 likewise notified the In re Applicant 24128Hearing Panel of his

concerns -- to no avail. Neither did the Indiana Supreme Court or the United States

Supreme Court address any of Plaintiffs concerns. ECF 57, p. 39; Short Appendix,

infra

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 Plaintiffs 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 Plaintiffs civil rights. ECF 32, 142

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

test questions violated Plaintiffs civil rights. Id.


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g. Dr. Bowmans 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 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, Dr. Bowman did speak with

Dr. Alexy [insert hearsay 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 Plaintiffs 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 after this

point]. ECF 32, 165


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VII. Summary of the ArgumentThe present appeal places two issues before this Honorable Court: The width of

Rooker-Feldmanabstention 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. Bowmans 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.

VIII. 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 Plaintiffs

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.


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A. De NovoReview Applies to All Issues at Bar

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

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

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

1. De Novo review of 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 Plaintiffs 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

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 Plaintiffsclaims 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-Feldmandoctrine itwill not reach the claim preclusion issue ECF 63, p. 19, n. 4.


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

landowners' claim).

Evidence extrinsic to the Verified Complaint at bar includes Plaintiffs

affidavit and attachments (ECF 57 & ECF 57-1), Defendant Bowmans amended

answer (ECF 32 ), and Defendant Ross filing of Plaintiffs 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 novoreview

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 Courts presentation of

the Black Letter law defining the historic Rooker-Feldmandoctrine, disagreeing

only with the Courts application of the same to the instant facts. The Appellant


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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.

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 Courts most

recent cases weighing Rooker-Feldmanclaims. Those cases form what could be

dubbed a Rooker-FeldmanTrifecta. 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, 562 U.S. -- , 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-Feldmandoctrine, Justice Ruth Bader Ginsburg

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

As we explained in Exxon Mobil [ ], the RookerFeldman 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,The District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,103 S.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 the

state 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

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

Rooker-Feldmanabstention. Id.at 1300.


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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 ...

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 oncein the almost three decades following its eponymous birth. That

said, the Rooker-Feldmandoctrine does have a raison dtre. It is found in the

italics above: Rooker-Feldmanabstention 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 causeof 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-Feldmanabstention to its narrow role:

We observed in Exxon[Mobil]that the RookerFeldmandoctrine hadbeen construed by some federal courts to extend far beyond thecontours of the Rookerand Feldmancases. 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-Feldmanabstention.


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

Rooker-Feldmanhas been narrowed to a sliver through the Trifecta yet

neither Skinnersmajority nor Skinnersdissent penned the funeral eulogy for

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

had so eulogized Rooker-Feldmanyears earlier:

Rookerand Feldmanare 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. Feldmana

nonunanimous, 25page 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[Ginsburgs] 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-

Feldmanwas dead, Rooker-Feldmanremained dead, and that previous High Court

decisions had killed Rooker-Feldmanvia a clear explanation of issue and claim

preclusion.

3. If Rooker-Feldman yet lives, it does so via the inextricably intertwined doctrineWhile the rumors ofRooker-Feldmans death may be exaggerated, it is

noteworthy that the Lancemajority again cautioned lower courts as to the narrow

applicability ofRooker-Feldman:


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In Rooker, a party who had lost in the Indiana Supreme Court, andfailed 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 appealof the Indiana SupremeCourt decision, over which only this Court had jurisdiction, and said

that the aggrieved litigant cannot be permitted to do indirectly whathe no longer can do directly.

Lance, 546 U.S. at 463 (emp.add.). In Rookersalmost 90 year old cannot do

indirectly prohibition is found, in nascent form, the inextricably intertwined

doctrine animating the instant appeal. Like the instant case, Rookerarose out of

the Indiana Supreme Court. Unlike the present case, Rookerasked the federal

district court to overrule the Indiana state courts 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 LanceCourt next jumped forward six decades to address the second

contributing case in the so-called Rooker-Feldmandoctrine:

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

Appealstheir sole avenue of review was with this Court.

Neither Rookernor Feldmanelaborated 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 Rookerrule; Indeed, this Court has never applied RookerFeldman todismiss an action for want of jurisdiction.

Lance, 546 U.S. at 463-64 (cites omit.).

It is illustrative ofRooker-Feldmans alleged narrow application that the

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


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plaintiffs case. Such cannot be said of the lower federal courts, a fact which moved

the Lancemajority to reiterate a caution about Rooker-Feldmans troubling past:

In Exxon Mobil, decided last Term, we warned that the lower courts

have at times extended RookerFeldmanfar beyond the contours ofthe Rookerand Feldmancases, overriding Congress' conferral offederal-court jurisdiction concurrent with jurisdiction exercised bystate 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 through this

inextricably intertwined doctrine that lower courts extend Rooker-Feldmanfar

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 District of Columbia v. Feldman

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

Rooker-Feldmanto 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

4 Justice Stevens has been Rooker-Feldmansharshest critic since the doctrinesbirth. SeeThe District of Columbia Court of Appeals v. Feldman, 460 U.S. 488(1973) (Stevens, J., dissenting).


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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

judicial officers holding jurisdiction apart from the federal district court and thus

they sought orders violating the very concept of comity. Plaintiff at bar, on the other

hand, specifically asks that the state court order not be reviewed by the federal

district court. 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 JLAPs evaluation). Facts, 17, 27

Feldman and Hickey, by comparison, sued their bar examiners. They

petitioned the federal district court to reverse the order denying them bar entrance

and to issue an order instead seating them in the D.C. bar. If Feldman and Hickey

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.


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won, the D.C. bar examiners lost their ability to keep Feldman and Hickey from

practicing in the realm allegedly under their jurisdiction. 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 the non-bar

examiner (and even nongovernmental) Defendants before he was denied bar

admission. He merely asks the federal court to take action to ameliorate the

negative impact the Defendants alleged collusion and alleged calumnies have

visited upon 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. Feldmans inextricably intertwined doctrinedoes not apply to the facts at bar

The distinction between the appeal at bar and the iconic Feldmanruling is

further revealed in the majoritys use of the inextricably intertwined clause:

[Plaintiffs allege the court acted] arbitrarily and capriciously and unreasonably and discriminatorilyin denyingtheir petitions [to join

the bar and so] required the District Court to review a final judicialdecisionof the highest court of a jurisdiction in a particular case. Theseallegations are inextricably intertwinedwith 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.


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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

decision of the highest court of a jurisdiction in a particular case let alone reverse

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.

Plaintiffs complaint does not present allegations inextricably intertwined

with the Indiana Supreme Courts ultimate decision to deny Plaintiffs motion to

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

the present action.

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

Evidence that the District Court erred in applying inextricably intertwined

analysis is found in the Indiana Board of Law Examiners [IBLE] own

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

adverse to Applicant 24128, the IBLEchastised the future Plaintiff for not

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

same time the IBLE construed Plaintiffs 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


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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

adjudicative IBLE and evaluative JLAP are not the same agency they differ as to

management, function, focus and immunities, among other substantive qualities.

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

Evidence that the present appeal is not a redux ofFeldmanis 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 U.S.C. 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 filedbefore the state process concluded.

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

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

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

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


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arguing that Youngerabstention applied given the parallel state and federal

litigation. (See ECF 63 at fn. 3)

Thus the present appeal is distinguished from Feldman.

5. Rooker - Feldmans operative core reveals the doctrine inapplicableThe unified LanceCourt recently re-iterated, with a note of caution, the

operational core of this judicial doctrine:

RookerFeldman, we explained, is a narrow doctrine, confined tocases 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. The current litigation does not fall to the Rooker-

Feldmandoctrine for the following four reasons:

a. Plaintiff is not the state-court loserRooker-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-Feldmananalysis.

Exxon Mobilanswered the question as to whether being a loser in an

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

Rooker-Feldmandoes not apply to federal actions that simply raise claims

previously litigated in state court. Exxon Mobilat 287 & n. 2 (cataloguing the

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


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why those cases did not dictate dismissal). The Exxon MobilCourt 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

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 Feldman460 U.S. at 483

84 n. 16).

Plaintiff at bar specifically asked the District Court to notreview 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-Feldmanbar 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 to join that august bar.


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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-Feldmandoctrine, 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 offederal rights whenever the violator so far succeeded in corrupting thestate judicial process as to obtain a favorable judgment [cases omitted].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 a process skewed by ideology visited substantial reputational damage upon

him. Plaintiff also alleges the fabricating of evidence against him resulting in

reputational and professional damages in the future -- damages reaching far

beyond the jurisdiction of the Indiana Supreme Court. (See, e.g., Plaintiffs TRO

motion filed contemporaneously with the verified complaint.) Nessesseemingly

allows plaintiffs to claim adverse state court decisions as harm under circumstances

such as those at bar. Plaintiff Brown does not claim such harm. He rather claims

damages independent of any state court order, damages arising in actions taken out

of court prior to January 22, 2009 and prior to the final bar admission hearing in

June, 2009 let alone the final state court order of November, 2009.


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b. Plaintiff does not complain of injuriesvisited 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.

The United States Supreme Court has repeatedly utilized the Seventh

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

to demonstrate the correct analysis under Rooker-Feldman. The Gashpanel

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 GASHCourt 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 Indianas ultimate conclusion that he is

6GASHhas been cited over 770 times. GASHwas cited approvingly by both the Exxon

Mobiland SkinnerCourts.


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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 GASHwould establish firm precedent for

rejecting Rooker-Feldmanabstention. 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. GASHis dispositive as to the

Rooker-Feldmananalysis given the record at bar.

c. Plaintiff does not complain of any injuriesarising 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

JLAP remanded him back to the IBLE with the tender of Dr. Bowmans report. The

state court order at bar issued some ten months later. 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-Feldmananalysis.


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d. Plaintiff does not invite the district court to eitherreview or reject another courts conclusion.

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

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

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

This Honorable Court rightly built upon the GASHreasoning even before its

practical wisdom was fully approved by the Supreme Court, noting in pre-Trifecta

Rooker-Feldmananalysis 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). The instant Plaintiff seeks to have no state court judgment set aside or

even reviewed. Long is dispositive as to the Rooker-Feldmananalysis given the

record at bar.

e. The District Court Conceded that the Core ofRooker-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 Courts 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

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

who may be subject to the interrogations of JLAPs mental health authorities and JLACsdeaf ear to constitutional concerns at the present. SeePlaintiffs prayers for equitable relief,ECF 1.


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

a review and modification of the Indiana Supreme Courts 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 ofIn 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

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

District Court finding that Plaintiffs civil rights were violated by the Defendants at

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

Applicants direct testimony to the Hearing Panel (and not acts of the Defendants at

bar) to justify the only clearly-stated reason that Applicant 24128 was disqualified

from entering the Indiana bar.8

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

the Indiana Supreme Courts dedication to legal positivism, let alone reject or cure

the same.

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 attorneys conscience, and that an avowed willingness not to

do so is disqualifying. ECF 52-2, motion hearing panels report at pp.29-30.


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

Indiana Supreme Courts 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-FeldmansinextricablyintertwineddoctrineappliedinthisinstanceThe District Court has served the appeal well by sharply focusing the Rooker-

Feldmananalysis on the question of whether Plaintiffs claims are inextricably

intertwined with the Indiana Supreme Courts determination to deny his petition

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

Feldmanabstention the instant facts afford this Honorable Court the opportunity to

further define this important judicial doctrine.

Justice Marshall explained this subdoctrine as follows:

While the question whether a federal constitutional challenge is

inextricably intertwinedwith 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 courtwrongly 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 Penzoilconcurrence is the lubricant facilitating much of

the Rooker-Feldmanmission creep of which the High Courts post-PenzoilTrifecta


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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 ofRooker-Feldmanis the very concern

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

Mobil.

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

is undertaken per a strict reading of Justice Marshalls Penzoildirectives, since

such a reading maintains a cushion between Rooker-Feldmanand preclusion

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

in Judge Richard Cudahys labeling this abstention doctrine as a somewhat

metaphysical concept in Taylor v. Fed. Natl Mortg. Assn, 374 F.3d 529, 533 (7th

Cir. 2004). In the midst of such an existential quandary this Honorable Court

retreated to the tried and true reasoning ofGASH itself a harbinger of the 2006

2011 Trifecta.

To keep Rooker-Feldmanboth concrete and cushioned from issue and claim

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

in two different iterations:

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

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


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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 24128was 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 Plaintiffs 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

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

courts. Facts, 7-9.

Essentially serving up the same question in a different format, Justice

Marshall also asked:

b. Is federal relief predicated only upon a convictionthat 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: Assume that the Plaintiff as bar is as mad as the

proverbial hatter -- he was still subjected to actionable torts on the road to that

conclusion.


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It is dispositive that the Plaintiff at bar could have filed his complaint with

no substantial changes necessary many months before the Indiana Supreme

Court denied his admission motion on November 16, 2009.10 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 cannot even petition to become an Indiana licensed attorney until

2014 -- and will not be acceptable 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 (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 Courts final, unappealable

and firmly resolved judgment as to Applicant 24128s unworthiness as an Indiana

attorney at least before 2014. Facts, 10.

Conclusion as to the Rooker-Feldman Issue

Even before the High Courts recent Trifecta, this Honorable Courts

reasoning in GASH, Ritter, Centres, Neesesand Longpivoted the guns ofRooker-

10 The United Nations International Day of Tolerance.http://www.un.org/en/events/toleranceday/


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Feldmanaway from the instant docket.Plaintiff at bars federal claims allege

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

Plaintiff at bars federal claims seek remedies that could not issue out of a bar

application hearing. 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 JLAPs management team

and their hand-picked mental health authorities.

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

Rooker-Feldmanabstention.

C. Defendants are not entitled to absolute immunity.

Appellant finds little to take issue with in the District Courts presentation of

the Black Letter law defining the historic witness immunitydoctrine, mostly

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

the Courts application of that doctrine to the instant facts.

1. The Court erred in granting Drs. Ross and Bowman witness immunity.After a review limited to the Verified Complaint the District Court

inexplicably reasoned better assumed -- that the involvement of Defendants


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

Supreme Courts 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,

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.


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

following guidance for future decisions on immunity:

Decisions in later cases are consistent with the functional approach to

immunity employed in Imbler. [Numerous cases omitted.] Thesedecisions have also emphasized that the official seeking absoluteimmunity bears the burdenof showing that such immunity is justifiedfor the functionin 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" inour 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 didbelow) that their work with the Judges and Lawyers Assistance Program

recommend them for the prophylactic of absolute immunity, their level of immunity

is 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 Committees work. Admis. Disc. R. 31. 10.

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

the District Court. Such status was assumed, without any analysis of function. Tokeep this status under de novoreview 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) teaches that:

The immunity of parties and witnesses from subsequent damagesliability for their testimony in judicial proceedingswas 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


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could not recover even if the witness knew the statements were falseand made them with malice. ...

Briscoe, 460 U.S. at 332-333 (cites omit., emp.add.)

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

While the Briscoedecision 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

Briscoesreach to courtroom drama:

The petition for writ of certiorari [before us] does not raise the questionof immunity for testimony at pretrial proceedings such as probablecause hearings, nor does petitioners' brief discuss whether the sameimmunity considerations that apply to trial testimonyalso 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.

460 U.S. at 328 (emp add). The Briscoeruling 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.Briscoemerely established that in-court testimony during a criminal trial is

protected by absolute witness immunity. See House v. Belford, 956 F.2d 711, 720-

271 (7th Cir.1992)(applying Briscoein such a context).

Briscoeand 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


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

practice.)

Noting the difference between Briscoeand 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

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

health authorities.11

b. Drs. Elizabeth Bowman and Stephen Ross did notfunction as court-appointed expert witnesses.The question of witness immunity should not turn on the mere fact that Drs.

Ross and Bowman are dubbed mental health authorities, or enjoy cooperating

clinician status with JLAP (the IBLEs wording) or are friends with Defendant

11

Dr. Bowman found Plainti