_____________________________________________________________________________________

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

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APPEAL OF RIGHT
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Brief of Appellant Bryan J. Brown

Oral Argument Requested

Bryan J. Brown KS Bar No. 17634 Attorney pro se 827 Webster Street Fort Wayne, IN 46802 (260) 515-8511 Brown1634@gmail.com

I.
I. II.

Table of Contents

Disclosure Statement.......................................................................... Error! Bookmark not defined. Table of Contents ............................................................................................................................... 2

III. Table of Authorities ............................................................................................................................ 4 IV. Statement of Jurisdiction ................................................................................................................... 5 V. Issues Presented ................................................................................................................................ 6 1. Did the District Court err in finding that it lacked subject matter jurisdiction over the instant matter due to Rooker-Feldman abstention? ......................................................................... 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 ....................................................................................................................... 6 VII. Statement of the Facts ...................................................................................................................... 7 A. B. C. D. E. F. Past as prologue? Plaintiff/Appellants bar admission motion .................................... 7 Collusion in High Places and Fear of Ongoing Harm .......................................................... 9 The Work of the Authorities at Bar (Dr. Stephen Ross) ....................................................... 9 The Work of The Authorities at Bar (Dr. Elizabeth Bowman) ............................................ 11 The Work of The Authorities at Bar (JLAP Management) ................................................. 12 The Admissions of Dr. Elizabeth S. Bowman ...................................................................... 14

VIII. Summary of the Argument .............................................................................................................. 16 IX. The Argument (in three movements)............................................................................................. 16 A. 1. 2. B. 1. 2. 3. 4. a. b. 5. De Novo Review Applies to All Issues at Bar .............................................................................. 17 De Novo review of dismissal under Federal Rule Civil Procedure 12(b)(1) ........................ 17 De Novo review can contemplate extrinsic evidence ............................................................. 17 Rooker-Feldman abstention is not justified in this instance....................................................... 18 Rooker-Feldman Abstention is a doctrine of narrow applicability ......................................... 19 Rooker-Feldman Abstention is a doctrine on life support ...................................................... 21 If Rooker-Feldman yet lives, it does so via the inextricably intertwined doctrine ............ 21 The instant appeal is not on all fours with District of Columbia v. Feldman....................... 23 Close to Feldman, but no cigar .............................................................................................. 23 Feldmans inextricably intertwined doctrine does not apply to the facts at bar ............ 25 Rooker - Feldmans operative core reveals the doctrine inapplicable ................................. 28

a. b. c.

Plaintiff is not the state-court loser Rooker-Feldman anticipates...................................... 28 Plaintiff does not complain of injuries visited upon him by a state court judgment. ....... 31 Plaintiff does not complain of any injuries arising after January 22, 2009....................... 32

d. Plaintiff does not invite the district court to either review or reject another courts conclusion.......................................................................................................................................... 33 e. The District Court conceded that the core of Rooker-Feldman is inapplicable in this instance.............................................................................................................................................. 33

6. The District Court erred in concluding that Rooker-Feldmans inextricably intertwined doctrine applied in this instance ......................................................................................................... 35
a. Does the federal claim succeed only to the extent that the state court wrongly decided the issues before it? ......................................................................................................................... 37 b. Is federal relief predicated only upon a conviction 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. 2. The Court erred in granting Drs. Ross and Bowman witness immunity. ............................. 39 Absolute Immunity is to be granted quite sparingly ................................................................ 40

3.
a.

Witness Immunity is a subspecies of Absolute Immunity....................................................... 41

Briscoe v. LaHue does not apply to the expert witness reports at bar ............................. 42

b. Drs. Elizabeth Bowman and Stephen Ross did not function as court-appointed expert witnesses. .......................................................................................................................................... 43 4. X. Seventh Circuit precedent does not recommend Absolute Immunity .................................. 51 Conclusion Seeking Relief .............................................................................................................. 55 Conclusion as to the Witness Immunity Issue ................................................................................. 54 XI. Certificate of Compliance ................................................................................................................ 56 XII. Short Appendix ................................................................................................................................. A1 A. B. C. D. E. Docket Below ........................................................................................................................... A1 Court memorandum of March 31, 2011 ............................................................................. A6 Court order of April 20, 2011 ............................................................................................. A37 Indiana Supreme Court order of November 16, 2009 ................................................... A39 United States Supreme Court order denying certiorari .............................................. A40

II.
Cases

Table of Authorities

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). ................................................................................................... 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, 51 Hay 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

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 ............................................................................................................................................... 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

III.

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 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.

IV.

Issues Presented

1. Did the District Court err in finding that it lacked subject matter jurisdiction over the instant matter due to RookerFeldman abstention? 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?

V.

Statement of the Case

Appellant 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. 3. No other Defendants filed answers to the verified complaint. 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 contains much detail supporting the witness immunity argument. See Appendix B of ECF 57, pp 37 40. (Non-Defendant Dr. Bryan Flueckigers report is attached to the complaint. ECF 1).

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. 9.

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. 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.

VI.

Statement of the Facts

Appellant adopts in whole the District Courts Factual Background, with the addition of the following:

A. 10.

Past as prologue? Plaintiff/Appellants bar admission motion

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. 94. 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

B. 13.

Collusion in High Places and Fear of Ongoing Harm

Plaintiff alleges that Dr. Bowman, Dr. Ross, social worker Sudrovech 1 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 413, 21 23 14. 15. Plaintiff alleges that social worker Sudrovech engaged in the independent Plaintiff fears that the reports of Drs. Bowman and Ross will be tort of interfering with his contract with Dr. Bowman. ECF 1, Legal Claim 20. 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. 17.

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

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

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.

19. a.

Plaintiff/Appellant contacted Dr. Ross about his concerns as to the content of Ross nondiagnosis that Plaintiff/Appellants 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

his report, and in specific:

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 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. Browns religious beliefs and convictions. ECF 57-1, p.9. (emp. added); ECF 1, 64 79, Legal Claims 12, 13; see Plaintiffs concerns at ECF 1, 56-57

20. 21. 22. 23. 24. 25.

The Ross report did not contain a jurat or any other indicia of testimonial The Ross report was not submitted as evidence per any written rules of The Ross report was not subjected to cross-examination. Id. Dr. Ross never took to the witness stand or otherwise offered testimony at a The Ross report was not the subject of any stipulations rendering it No change was made to the Ross report in response to Browns requests. The

intent. ECF 57-1, pp.2 - 9 procedure. ECF 57-1, pp. 1-2; ECF 57, pp. 37 - 40

hearing incident to In re 24128. Id. testimonial or evidentiary. Id. 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
10

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

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. 29. Dr. Bowman tendered a report on Brown that again weighed his ideology to Brown challenged the Bowman report for, inter alia, the following reasons: [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 opine on his worthiness as to a government license. ECF 1, 133 169 a. Bowman cited as evidence of mental illness Browns conservative ideology:

11

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. 32. 33. 34. 35. 36. The Bowman report did not contain a jurat or any other indicia of testimonial The Bowman report was not submitted as evidence per any written rules of The Bowman report was not subjected to cross examination. Id. Dr. Bowman never took to the witness stand or otherwise offered testimony The Bowman report was not the subject of any stipulations rendering it The Bowman report misspelled Defendant Sudrovechs name, grossly intent. ECF 57-1, pp. 15 24 procedure. ECF 57-1, pp. 13-14, ECF 57, pp. 37 - 40

at a hearing. Id. testimonial or evidentiary. Id. 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. 38. Dr. Bowman admits to including hearsay in her ostensible expert opinion The Bowman report was tendered to the IBLE by Sudrovech on January 22, report in her answer to the complaint. See ECF 32, 172-177 2009. ECF 57-1, pp. 13-14

E. 39.

The Work of The Authorities at Bar (JLAP Management)

Defendant Sudrovech interpreted, weighed and adopted the report of the

psychiatrist Dr. Bowman in his report to the IBLE, stating JLAP concurs with Dr.
12

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. 42. Sudrovech similarly interpreted Dr. Ross report in his filing with the IBLE. Neither the Sudrovech-Ross report (i.e.,Sudrovechs report attached to the ECF 57-1, pp. 1-2 Ross report and filing both with the IBLE, ECF 57-1, pp. 1-2) nor the SudrovechBowman (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 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 44. 45. 46. 47. Neither the Sudrovech-Ross report nor the Sudrovech-Bowman report were Defendant Sudrovech never took to the witness stand or otherwise offered Neither the Sudrovech-Ross report nor the Sudrovech-Bowman report were According to Indiana Supreme Court Admis. Disc. R. 31, 10, subjected to cross examination. Id. testimony at a hearing. Id. the subject of any stipulations rendering it testimonial or evidentiary. Id. 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.

13

49. 50.

Plaintiff alleges both official and individual (unofficial) acts on the part of Plaintiff notified Defendant Harrell of his concerns regarding the

Harrell and Sudrovech. ECF 1, at 12 13. 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 24128 Hearing 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. 52. The Admissions of Dr. Elizabeth S. Bowman

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.
14

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

15

VII. 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. 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.

16

A. De Novo Review 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 novo standard. 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

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.4 and Order, p. 24, n. 8 (ECF 63). In this case, the Court is dismissing all of the Plaintiffs claims 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 it will not reach the claim preclusion issue ECF 63, p. 19, n. 4. 17

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 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 Courts presentation of the Black Letter law defining the historic Rooker-Feldman doctrine, disagreeing only with the Courts application of the same to the instant facts. The Appellant

18

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-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, 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-Feldman doctrine, Justice Ruth Bader Ginsburg (for the six Justice majority)3 recently penned the following: As we explained in Exxon Mobil [ ], the RookerFeldman doctrine has been applied by this Court only twice, i.e., only in the two cases from which 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: The losing party in state court [ ] filed suit in a U.S. District Court after the state proceedings ended, complaining of an injury caused by the statecourt judgment and seeking federal-court review and rejection of that judgment. Alleging federal-question jurisdiction, the plaintiffs in Rooker and Feldman asked the District Court to overturn the injurious
3

Rooker-Feldman abstention. Id.at 1300.

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

19

state-court judgment. We held, in both cases, that the District Courts

lacked subject-matter jurisdiction over such claims, for 28 U.S.C. 1257 vests authority to review a state court's judgment solely in this Court. 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 once in the almost three decades following its eponymous birth. That said, the Rooker-Feldman doctrine does have a raison dtre. 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 RookerFeldman doctrine had been construed by some federal courts to extend far beyond the contours of the Rooker and Feldman cases. Id., at 283, ..[We emphasized] 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.

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2.

Rooker-Feldman Abstention is a doctrine on life support

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

neither Skinners majority nor Skinners dissent penned the funeral eulogy for

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, correctly applied the simple legal proposition that only this Court may exercise appellate jurisdiction over state-court judgments. Feldman a nonunanimous, 25page opinion written by Justice Brennan in 1983, was incorrectly decided and generated a plethora of confusion and debate among scholars and judges. Last Term, in Justice [Ginsburgs] lucid opinion in Exxon, the Court finally interred the socalled Rooker- Feldman doctrine. And today, the Court quite properly disapproves of the District Court's resuscitation of a doctrine that 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 doctrine While the rumors of Rooker-Feldmans death may be exaggerated, it is noteworthy that the Lance majority again cautioned lower courts as to the narrow applicability of Rooker-Feldman:

21

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 District Court challenging the constitutionality of the state-court judgment. We viewed the action as tantamount to an appeal of the Indiana Supreme Court decision, over which only this Court had jurisdiction, and said that the aggrieved litigant cannot be permitted to do indirectly what he no longer can do directly.

Lance, 546 U.S. at 463 (emp.add.). In Rookers 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 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 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 challenged the [denial of bar entrance] decisions themselvesas opposed to the bar admission rules promulgated nonjudicially by the Court of Appealstheir sole avenue of review was with this Court. Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our cases since Feldman have tended to emphasize the narrowness of the Rooker rule; Indeed, this Court has never applied RookerFeldman to dismiss an action for want of jurisdiction.

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

It is illustrative of Rooker-Feldmans alleged narrow application that the United States Supreme Court has only applied it twice and never to dismiss a

22

plaintiffs case. Such cannot be said of the lower federal courts, a fact which moved the Lance majority 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 RookerFeldman far beyond the contours of the Rooker and Feldman cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law 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-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 District of Columbia 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 Justice Stevens has been Rooker-Feldmans harshest critic since the doctrines birth. See The District of Columbia Court of Appeals v. Feldman, 460 U.S. 488 (1973) (Stevens, J., dissenting).
4

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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. 24

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 doctrine does not apply to the facts at bar The distinction between the appeal at bar and the iconic Feldman ruling is further revealed in the majoritys use of the inextricably intertwined clause: [Plaintiffs allege the court acted] arbitrarily and capriciously and unreasonably and discriminatorilyin denying their petitions [to join the bar and so] required the District Court to review a final judicial decision of the highest court of a jurisdiction in a particular case. These allegations are inextricably intertwined with the District of Columbia Court of Appeals' decisions, in judicial proceedings, to deny the respondents' 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-Feldman bar to the present action.

i.

The Indiana judiciary recognizes a substantive difference 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 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 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
26

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 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 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 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,

27

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 - Feldmans operative core reveals the doctrine inapplicable The unified Lance Court recently re-iterated, with a note of caution, the operational core of this judicial doctrine: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.

RookerFeldman, we explained, is a narrow doctrine, confined to

Lance, 544 U.S. at 284. The current litigation does not fall to the RookerFeldman 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

28

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 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 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 judged by a tribunal that is uncontaminated by politics, then he can, without being blocked by the Rooker-Feldman doctrine, sue to vindicate that right and show as part of his claim for damages that the violation caused the decision to be adverse to him and thus did him harm [cases omitted]. Otherwise there would be no federal remedy for a violation of federal rights whenever the violator so far succeeded in corrupting the state 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 fabricated evidence 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.) Nesses seemingly 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 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. 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 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 Indianas ultimate conclusion that he is

GASH has been cited over 770 times. GASH was cited approvingly by both the Exxon Mobil and Skinner Courts.
31

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 establish firm precedent for rejecting 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 given the record at bar.

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 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-Feldman analysis.

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d. Plaintiff does not invite the district court to either review 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 barworthiness, for that conclusion is simply irrelevant to the current action. 7 This Honorable Court rightly built upon the GASH reasoning even before its practical wisdom 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). The instant Plaintiff seeks to have no state court judgment set aside or even reviewed. Long is dispositive as to the Rooker-Feldman analysis given the record at bar. 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 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

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 JLACs deaf ear to constitutional concerns at the present. See Plaintiffs prayers for equitable relief, ECF 1.
7

33

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 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 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 of In re Applicant 24128 since 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.

[Applicant 24128 ] testified [as] to his obligation to disobey laws that contradicted his religious 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.

The District Court erred in concluding that Rooker-Feldmans inextricably intertwined doctrine applied in this instance
The District Court has served the appeal well by sharply focusing the Rooker-

Feldman analysis 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-

Feldman abstention 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 intertwined with the merits of a state-court judgment may sometimes be difficult to answer, it is apparent, as a first step, that the federal claim is inextricably intertwined with the state-court judgment if 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 is difficult to conceive the federal proceeding as, in substance, anything other 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 Courts post-Penzoil Trifecta

35

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.
Issue and claim preclusion need not be ground down if intertwined analysis is undertaken per a strict reading of Justice Marshalls Penzoil directives, since such a reading maintains a cushion between Rooker-Feldman and 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 of GASH itself a harbinger of the 2006 2011 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:

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 advancing the Rooker-Feldman doctrine.
9

36

a. Does the federal claim succeed only to the extent that 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 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 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: 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.
37

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, Neeses and Long pivoted the guns of Rooker-

10

The United Nations International Day of Tolerance. http://www.un.org/en/events/toleranceday/ 38

Feldman away 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-Feldman abstention.

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 immunity doctrine, 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

39

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.

40

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 to immunity employed in Imbler. [Numerous cases omitted.] These decisions 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 government officials in the exercise of their duties. We have been "quite sparing" in our recognition of absolute immunity, [ ]and have refused to extend it any "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 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. To keep this status under de novo review these report-writing, absolute immunityseeking 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. Witness Immunity is a subspecies of Absolute Immunity Briscoe v. LaHue, 460 U.S. 325 (1983) teaches that:
The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law. Some American decisions required a showing that the witness' allegedly defamatory statements were relevant to the judicial proceeding, but once this threshold showing had been made, the witness had an absolute privilege. The plaintiff

41

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

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

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

Briscoes reach to courtroom drama:

The petition for writ of certiorari [before us] does not raise the question of immunity for testimony at pretrial proceedings such as probable cause hearings, nor does petitioners' brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable cause hearings regarding petitioner Briscoe. 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 in-court testimony during a criminal trial is
protected by absolute witness immunity. See House v. Belford, 956 F.2d 711, 720271 (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

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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 Briscoebased 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 not function 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

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 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. (emp added). Plaintiff did not comprehend a duty to voice valuing attitudes toward Freud, Jung and the abortion industry as a prerequisite to a finding of acceptable mental health by the government and mental health authorities at bar. Plaintiff rather labored under the misconception that he could do no wrong against the State by confessing his chosen Creed and Catechism.
11

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Harrell (as Plaintiff pled). 12 All of those criteria are merely the makings of status -none relate to actual function that those with the claimed 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 (or how important) the expert claims to be. 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. Oaths or Affirmations are the sine qua non as to witness functions

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 Courts 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 swear 13 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

Both Ross and Bowman enjoy a preferred provider status with JLAP superior to Dr. Flueckiger (see verified complaint, ECF 1, 117-122) despite all three sharing the same social function as licensed mental health providers. (See ECF 1, Appendix.)
12 13

According to Black's Law Dictionary (9th ed.2009), swear means to administer an oath to (a person) or to take an oath. 44

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 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.

The instant reports are bare as to oaths or affirmations

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 jurat 15 of the type typically associated with testimonial documents (such as affidavits, depositions or commitment orders).

Nothing in Black's Law Dictionary definition of oath or affirmation fairly describes the reports at bar. 15 Nothing in Black's Law Dictionarys definition of jurat fairly describes any portion of the reports at bar.
14

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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 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 declarants 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 religiouslyinformed Ross report and hearsay-laden Bowman report to opine, in clairvoyant-

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 12 and June 24, 2008, to Defendant Ross, and subsequently copied them to Defendant Sudrovech, requesting that Defendant Ross make changes to his report [that] expressed concern over the content (specifically the religious content) of Defendant Rosss psychological evaluations. Defendant Ross did not make any changes to his report. ECF 63 at p.4. Also as the District Court noted, Dr. Ross challenged pseudo-evaluation was subsequently rejected by every doctor who subsequently evaluated the Plaintiff, including Doctors Sass, Flueckiger, Alexy, and even Bowman. Id. Such career-crashing imprecision is a liberty that experts submitting reports subjected to oaths or affirmation would be loathe to take which may explain the lack of jurat and/or testimony at bar if Plaintiffs theory of the case is correct.
16

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like fashion, as to what those reports portend for the future subjective state of an applicant that he never once met. 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 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.

None of the Defendants are witnesses according to legal custom

Witnesses, according to Blacks 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.

As the District Court noted, Sudrovech repeatedly refused Browns requests to meet and failed to assign Plaintiff the offered (and accepted) mentor through JLAP. ECF 63, p. 3, Such allegations of bad faith processing raise an inference of professional malpractice (at the very least). Given the admission of Dr. Bowman, Facts, 52(j), credible collusion between Sudrovech and Bowman is also pled.
17

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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 Plaintiffs 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.

iv.

None of the Defendants testified according to legal custom

Common legal parlance likewise reveals the Sudrovech, Ross and Bowman reports to be nontestimonial. Testimony, according to Blacks 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, Indianas own court rules require that [b]efore testifying, every

witness shall swear or affirm to testify to the truth Rule 603 (emp.add.) Simple

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 Indiana law. 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 hearsay exception regarding public records).

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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.

v.

The instant record is bare as to testimonial intent

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 contained 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 cooperating (Plaintiff alleges 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

49

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. 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.

vi.

The instant record is bare as to the qualification of experts

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)).

19

In her answer, Defendant Bowman admits to including a pernicious type of hearsay in her report -- that being hearsay directly contradicting the written report of the declarant Dr. Alexy as to the ultimate issue under investigation. Facts 52 (h&i) 50

No such evidence of a qualification process 20 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.

The instant record is bare as to the crucible of judicial process

The so-called expert witness testimony at bar was never submitted to the crucible of the judicial process so that the fact finder may consider it, after crossexamination, 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

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.

This qualification process includes, inter alia, compliance with Indiana Evidence Rule 703, 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 bar reveals no such inquiry.
20

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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. 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:

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The threat of a lawsuit for damages can have the same intimidating effect on a witness who testifies by deposition as one who testifies in court. Testimony by deposition is an important part of the judicial process 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 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.,

53

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 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 systems 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.

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Perhaps most of all, no court document (other than the Federal District Courts 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. For all of these reasons the District Court erred in granting the reports written by Defendants Bowman, Ross and Sudrovech expert witness / absolute immunity status.

IX.

Conclusion Seeking Relief

For the reasons set forth herein Plaintiff/Appellant Bryan J. Brown urges this Honorable Court to reverse the District Courts order that it lacks jurisdiction to adjudicate the Plaintiffs claims and its decision that Defendants are entitled to 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.

Respectfully submitted on July 18, 2011,

Bryan J. Brown On his own behalf Kansas license no. 17634 827 Webster Street Fort Wayne, IN 46802 (260) 515-8511 Brown1634@gmail.com

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Certificate of Service I hereby certify that on July 18, 2011, I, Bryan Brown, delivered copies of Appellants brief to the following counsel of record via electronic 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 Sharon L Stanzione Stephen M. Brandenburg For Defendant Stephen Ross11051 Broadway Suite B Crown Point, IN 46307 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 302 W. Washington Street Indianapolis, IN 46204-2770

X.

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 13927 words, excluding the applicable sections. 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.
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CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 30 (a) and (b) The undersigned, counsel for Plaintiff-Appellant, hereby states that all of the materials required by Circuit Rule30(a) and 30(b) are included in the Appendix to this brief.

Bryan J. Brown

XI.

Short Appendix

A. Docket Below B. Court memorandum of March 31, 2011 C. Court order of April 20, 2011 D. Indiana Supreme Court order of November 16, 2009 E. United States Supreme Court order denying certiorari