No.

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In The

Supreme Court of the United States

-----------------------------------------------------------------BRYAN J. BROWN, Petitioner, v. ELIZABETH BOWMAN, et al., Respondents. -----------------------------------------------------------------On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit -----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI -----------------------------------------------------------------CHARLES RICE NOTRE DAME LAW SCHOOL P.O. Box 780 Notre Dame, IN 46556 (574) 850-1563 Charles.E.Rice.1@nd.edu ================================================================

i QUESTIONS PRESENTED Baird v. State Bar of Ariz., 401 U.S. 1 (1971) brought an end to a line of Supreme Court cases addressing state bar admission practices by declaring that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law. Id., at 2. This Petition presents just such an inquisition albeit at the hands of a government social worker and his designated, non-government mental health clinicians rather than attorneys duly deputized as bar examiners. Petitioner alleges that he was remanded into a system independent of the bar examiners where his religious and political views became the grist for unsworn reports (containing fraudulent allegations) tendered to (and then by) a government social worker in a bid to derail Petitioners bar application. To what court does an applicant so processed repair in search of justice? Petitioner sought redress in the federal district court only to be denied subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. The District Court also ruled that all involved in the processing of Petitioners file, even nongovernment clinicians that the Petitioner had retained, were absolutely immune from litigation.

ii QUESTIONS PRESENTED Continued This Petition asks this Court to determine which immunity takes precedence the Baird Courts order that beliefs and views are immune from bar applicant processing or the Rooker-Feldman doctrines immunization of federal dockets from bar applicants filings or the absolute immunity granted both government agents and private physicians at bar? These issues are presented for review through the following three questions: Question presented I Did the Seventh Circuit err by employing, in conflict with other circuits, the inextricably intertwined and reasonable opportunity tests rather than the four step process set forth in this Courts Exxon Mobil decision in its Rooker-Feldman analysis? Question presented II Does the Rooker-Feldman doctrine violate basic tenets of Equal Protection when denying law license applicants access to the federal district courts that is routinely allowed all other license seekers?

iii QUESTIONS PRESENTED Continued Question presented III Did the Seventh Circuit err by granting absolute immunity, in conflict with other circuits, to private doctors and a government social worker tendering unsworn and allegedly fraudulent reports which were not subjected to the crucible of judicial process?

iv LIST OF PARTIES PETITIONER: Bryan J. Brown RESPONDENTS: Elizabeth Bowman, Doctor Terry Harrell, individually and in her official capacity as Executive Director of the Judges and Lawyers Program Tim Sudrovech, individually and in his official capacity as Clinical Director of the Judges and Lawyers Assistance Program Stephen Ross, Doctor PARENT COMPANIES AND SUBSIDIARIES: None

v TABLE OF CONTENTS Page PETITION FOR WRIT OF CERTIORARI ............ OPINIONS BELOW ............................................... STATEMENT OF JURISDICTION ....................... STATUTORY PROVISIONS INVOLVED ............. STATEMENT OF THE CASE ................................ A. B. C. Statement of Facts ....................................... Statement of Proceedings Below ................. Statement on Issues Presented ................... 1 1 1 2 3 4 10 11

FRAMING ISSUE I: The foundation of the Rooker-Feldman doctrine ................................... 11 1. 2. The Reasonable Opportunity test ............ The Inextricably Intertwined test ............ 12 13

3. Recent decisions of this Court communicate the need to rein in the doctrine ........... 14 REASONS FOR GRANTING THE WRIT AS TO ISSUE I ............................................................... 16 I. Bowman failed to utilize the four-part test distilled from Exxon, and rather turned to pre-2005 precedent to define RookerFeldmans contours ...................................... 16

II. Bowmans reliance upon pre-2005 case law caused it to reject the Exxon-approved holding in GASH v. Village of Rosemont ..... 17 III. Bowmans reliance upon pre-2005 case law led it to apply the inextricably intertwined test .................................................. 19

vi TABLE OF CONTENTS Continued Page IV. Bowmans reliance upon pre-2005 case law led it to apply the reasonable opportunity test in conflict with the Sixth Circuit ......... 20 The Second, Sixth and Third Circuits have abandoned inextricably intertwined analysis ................................................................ 23

V.

VI. The First, Fifth and Ninth Circuits yet employ inextricably intertwined analysis ..... 26 VII. The Eighth Circuit is divided on the viability of inextricably intertwined analysis ... 29 30

Conclusion As To Issue I.........................................

FRAMING ISSUE II: The foundation of the Equal Protection challenge ................................. 31 REASONS FOR GRANTING THE WRIT AS TO ISSUE II .............................................................. 32 I. The Rooker-Feldman doctrine specifically handicaps the legal profession and no other profession ..................................................... 32 II. Rooker-Feldman established a regime that ignores basic jurisdictional principles ...... 33 III. IV. Yick Wo reveals the fundamental injustice of the Rooker-Feldman regime .................... 35 Ideologically-driven inquisitions focused upon religious and political beliefs have no place in the American system of justice ............... 37 38

Conclusion As To Issue II .......................................

vii TABLE OF CONTENTS Continued Page FRAMING ISSUE III: The foundation of the Absolute Immunity challenge ............................ 39 REASONS FOR GRANTING THE WRIT AS TO ISSUE III ............................................................ 40 I. Bowman establishes a novel doctrine of government official immunity that is out of step with this Courts precedent ................. 40

II. Bowman establishes a novel doctrine of witness immunity that is out of step with this Courts precedent .................................. 41 III. IV. V. Bowmans witness immunity ruling is in conflict with the Sixth Circuit ..................... 42 Bowmans witness immunity ruling is in conflict with the Ninth Circuit .................... 43 Bowmans witness immunity ruling is in conflict with the Fifth Circuit ..................... 44

VI. Bowmans absolute immunity ruling is in conflict with Wyatt v. Cole ........................... 45 Conclusion As To Issue III ...................................... CONCLUSION ....................................................... Appendix United States Court of Appeals for the Seventh Circuit, Order, dated February 2, 2012 .......... App. 1 United States District Court for the Northern District of Indiana Fort Wayne Division, Opinion and Order, dated March 31, 2011 ... App. 20 46 47

viii TABLE OF CONTENTS Continued Page United States Court of Appeals for the Seventh Circuit, Denial of Rehearing, dated March 2, 2012 ................................................................ App. 63 United States District Court for the Northern District of Indiana Fort Wayne Division, dated December 8, 2009 ...................................... App. 64 Letter from Bryan Flueckiger, M.D. ............... App. 114

ix TABLE OF AUTHORITIES Page CASES Abbot v. Michigan, 474 F.3d 324 (6th Cir.2007) ........22 Alioto v. City of Shively, Kentucky, 835 F.2d 1173 (6th Cir.1987)..................................................43 Baird v. State Bar of Ariz., 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971) ...............................37, 38 Bradley v. Fisher, 80 U.S. 335, 20 L.Ed. 646, 13 Wall. 335 (1871) ......................................................39 Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) .........................................41, 45 Brokaw v. Weaver, 305 F.3d 660 (7th Cir.2002) .........20 Brown v. Miller, 519 F.3d 231 (5th Cir.2008) ............45 Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) ...........................................40 Chamberlain v. 625 Orleans, LP, 2011 WL 1627080 (E.D.Tex.2011) ..........................................28 Collins v. Washington, Dept. of Labor and Industries, 2012 WL 1033567 (W.D.Wash.2012) .......28 Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ............................................... 11, 12, 13, 32, 34 Dodson v. University of Ark. for Med. Sciences, 601 F.3d 750 (8th Cir.2010), cert. denied, 131 S.Ct. 902, 178 L.Ed.2d 747 (2011) ....................29, 30 Donovan v. Fowle, 762 F.Supp.2d 186, 197, n.4 (D.Me.2011) .............................................................26

x TABLE OF AUTHORITIES Continued Page Ex parte Commonwealth of Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879) .........................................37 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) .......................................... passim GASH Associates v. Village of Rosemont, 995 F.2d 726 (7th Cir.1993) ............................... 17, 18, 19 Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir.2010) .....16, 25 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ................40 Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77 (2d Cir.2005) .........................................23, 24 Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) .....................................41 In re Paulson, 2012 WL 761260 (Bkrtcy.D.S.D.2012) ................................................29 In re Vazquez, 467 B.R. 550 (Bkrtcy.D.P.R. 2012) ........................................................................26 Keko v. Hingle, 318 F.3d 639 (5th Cir.), rehg en banc denied, 61 Fed.Appx. 123 (2003)..............44, 45 Kelley v. Med-1 Solutions, 548 F.3d 600 (7th Cir.2008) ..................................................................21 Kovacic v. Cuyahoga County Dept of Children and Family Services, 606 F.3d 301 (6th Cir.), cert. denied, 131 S.Ct. 804, 178 L.Ed.2d 538 (2010) .......................................................................24

xi TABLE OF AUTHORITIES Continued Page Lance v. Dennis, 546 U.S. 459, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) ............................. 15, 16, 24 Long v. Shorebank Dev. Corp., 182 F.3d 548 (7th Cir.1999) ..........................................................20 Loubser v. Thacker, 440 F.3d 439 (7th Cir.), cert. denied, 548 U.S. 907 (2006) ............................33 McCormick v. Braverman, 451 F.3d 382 (6th Cir.2006) ..................................................................24 McFall v. Fritsch, 2012 WL 1122789 (E.D.Pa.2012) ..........................................................26 Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) .............................................37 Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) ......................................................33 Nesses v. Shepard, 68 F.3d 1003 (7th Cir.1995) ........33 Paine v. City of Lompoc, 265 F.3d 975 (9th Cir.2001) ............................................................43, 45 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) ............ 13, 14, 20, 30 Pittman v. Cuyahoga County Dept. of Child and Family Services, 241 Fed.Appx. 285 (6th Cir.2007) ..................................................................24 Schware v. Board of Bar Examiners, 353 U.S. 247 (1957) .................................................... 34, 35, 38 Sharpe v. Tomlinson, 2010 WL 5647641 (M.D.Ga.2010) .........................................................12

xii TABLE OF AUTHORITIES Continued Page Spurlock v. Satterfield, 167 F.3d 995 (6th Cir.1999) ...................................................... 42, 43, 45 Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918) ..............................................................31 Taylor v. Fed. Natl Mortg. Assn, 374 F.3d 529 (7th Cir.2004) ..........................................................20 Texaco, Inc, v. Pennzoil Co., 784 F.2d 1133 (2d Cir.1986) ..................................................................13 Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432 (6th Cir.2006) ....................................45 Whitfield v. Ill. Bd. Law Examiners, 504 F.2d 474 (7th Cir.1974) .............................................35, 38 Willowbrook v. Olech, 528 U.S. 562 (2000) ................31 Wood v. Orange County, 715 F.2d 1543 (11th Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984) .............. 12, 20, 21 Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) ............................................45, 46 Wylie v. Bank of New York Mellon, 2012 WL 729842 (E.D.La.2012) .............................................27 Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ..................................... 35, 36, 37 Young v. Murphy, 90 F.3d 1225 (7th Cir.1996)......18, 19, 21

xiii TABLE OF AUTHORITIES Continued Page STATUTES 28 U.S.C. 1257 ........................................ 2, 3, 4, 11, 12 42 U.S.C. 1983 .................................................. passim Ind. Admin. Disc. R. 31 10 ....................................3, 39 OTHER AUTHORITIES Allison B. Jones, note, The Rooker-Feldman Doctrine: What Does It Mean To Be Inextricably Intertwined?, 56 DUKE L.J. 643 (2006) ........26 Dustin E. Buehler, Jurisdiction, Abstention, and Finality: Articulating a Unique Role for the Rooker-Feldman Doctrine, 42 SETON HALL L.REV. 553, 558 (2012) ...................................28 Erwin Chemerinsky, FEDERAL JURISDICTION (Aspen 5th ed., 2007) .................................. 15, 29, 30 Revisiting Rooker-Feldman: Extending the Doctrine To State Court Interlocutory Orders, 36 FL.ST.UNIV.L.REV. 373, 375, n.17 (2009) .....14, 31 Susan P. Johnson, Application of the RookerFeldman Doctrine in Bankruptcy Cases, 15 NORTON JOURNAL OF BANKRUPTCY LAW AND PRACTICE 341 (2006) ................................................23 Susan, Bandes, The Rooker-Feldman Doctrine: Evaluating Its Jurisdictional Status, 74 NOTRE DAME L.REV. 1175 (1999).............................14

1 PETITION FOR WRIT OF CERTIORARI Petitioner Bryan J. Brown petitions the Court for a Writ of Certiorari to review a final judgment of the United States Court of Appeals for the Seventh Circuit (entered February 2, 2012) affirming the District Courts dismissal of his Complaint.
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OPINIONS BELOW The opinion of the United States Court of Appeals for the Seventh Circuit (Cudahy, Kanne and Sykes) is included in the Appendix (App.1-19). The final judgment of the United States District Court for the Northern District of Indiana (Springmann, C.J.) is included in the Appendix (App.20-63).
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STATEMENT OF JURISDICTION The judgment of the United States Court of Appeals for the Seventh Circuit was entered on February 2, 2012. A timely motion for en banc review was denied on March 2, 2012. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1).
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2 STATUTORY PROVISIONS INVOLVED 28 U.S.C. 1257 (a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. (b) For the purposes of this section, the term highest court of a State includes the District of Columbia Court of Appeals. 42 U.S.C. 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the

3 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Indiana Admin. Disc. R. 31. 10 Section 10. Immunity. The Committee, Executive Director, staff, and volunteers are not subject to civil suit for official acts done in good faith in furtherance of the Committees work. Absent malice, a person who gives information to the Committee, staff or volunteers about a judge, lawyer or law student thought to be impaired is not subject to civil suit.
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STATEMENT OF THE CASE The Rooker-Feldman doctrine is a jurisdictional prohibition based upon 28 U.S.C. 1257 ([f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari.).

4 It mandates that federal district courts not serve as de facto appellate courts for litigants unhappy with state court judgments. Numerous tests have evolved over the twentynine year lifespan of the Rooker-Feldman doctrine designed to aid the district court in applying 28 U.S.C. 1257. One questions whether the federal claims are inextricably intertwined with a state court judgment. Another asks if the federal plaintiff enjoyed reasonable opportunity to raise his claims in state court. At bottom this petition alleges that the courts below improperly applied the Rooker-Feldman inextricably intertwined and reasonable opportunity tests to Petitioners 42 U.S.C. 1983 litigation (alleging First and Fourteenth Amendment violations), while, at the same time establishing a novel and expansive immunity doctrine for government investigators. This petition also challenges the Rooker-Feldman doctrines bias against the legal profession in light of Equal Protection principles. A. Statement of Facts Petitioner does not complain of erroneous factual findings or the misapplication of a properly stated rule of law. Petitioner rather asserts that Brown v. Bowman, No. 11-2164 (7th Cir.2012) (hereinafter Bowman) establishes a legal standard in conflict with this Court and numerous Circuits as to analysis under the Rooker-Feldman doctrine (Question I);

5 establishes a legal standard in conflict with this Court and several circuits as to the grant of absolute immunity (Question III); and advances a legal standard in conflict with the Equal Protection standards upon which our constitutional order was founded (Question II). The most salient facts pertinent to this Petition 1 are as follows: According to the District Court, [t]he basic thrust of this litigation is that non-bar examiners2 were biased against him because of his religious beliefs and that this bias resulted in the denial of his application for admission to the Indiana bar. App.21.

The district courts factual recital (App.24-27) is accurate but incomplete. The appellate courts factual recital (App.1-9) is neither accurate nor complete. The Appendix contains relevant excerpts from Petitioners verified complaint. App.64-114. Ancillary affidavits were filed to advance the District Courts subject matter jurisdiction analysis, ECF57, and Defendant Dr. Elizabeth Bowman filed an Answer prior to moving to dismiss. ECF32. Dr. Ross filed additional factual materials at ECF52. 2 Defendant Tim Sudrovech is a government social worker. Defendant Terry Harrell is a government attorney and Sudrovechs supervisor. Sudrovech ordered Petitioner to retain the non-government Defendant Stephen Ross, a psychologist in private practice, for an evaluation. Harrell ordered Petitioner to retain the non-government Defendant Elizabeth Bowman, a psychiatrist in private practice, for an evaluation. See App.64113. All four of these Defendants are party to this Petition.

6 Petitioner alleges that this denial was the result of a conspiracy evinced by the biased, religiouslypreoccupied and politically-influenced reports of the government investigator (a social worker supervised by a government attorney) and the private physicians the Petitioner was mandated to retain for evaluations. App.64-113. The government-recommended, privately retained psychologists report included the following nondiagnosis: I am not making these statements purely based upon the fervor of Mr. Browns religious beliefs and convictions. . . . The fervor, however, in which he represents himself vis a vis others and the intensity of his interpersonal style suggests a sub-clinical level of a bipolar disorder which would warrant further consideration by a psychiatrist.3 App.74,52. This allegation caused the government social worker and his supervisor to demand that Petitioner retain their recommended psychiatrist for a subsequent evaluation. App.75. Petitioner objected to the religious and political nature of the psychologists evaluation (which had included testing through the Minnesota Multiphasic Personality Inventory II). App.74-85. These objections ripened into many of the constitutional claims at bar.

All [d]octors that subsequently evaluated the Petitioner ruled out the possibility of a subclinical bipolar disorder. App.24.

7 Petitioner requested the opportunity to tender the evaluation of a board-certified psychiatrist not pre-recommended by the social worker at bar. This request was denied. App.22. Despite this denial, Petitioner was evaluated by Dr. Bryan Flueckiger, who issued a report stating that [Petitioner] satisfied [Indianas statutory] requirement[s] and recommended that he be permitted to sit for the Indiana bar exam. App.6,n.1. App.114. The government social worker and government attorney refused to accept the non-government ordered psychiatrists report and ordered Petitioner to retain a government-recommended psychiatrist. App.86-91. In an effort to comply with [government] requirements, the [Petitioner] scheduled an evaluation with one of the two [government-recommended] psychiatrists in Indianapolis. App.26. [P]art of that psychiatrists evaluation included . . . visiting Dr. William Alexy who conducted a psychological examination during an interview. Id. The government-recommended psychiatrists report misquoted Dr. Alexys report. The report falsely stated that Dr. Alexy had diagnosed Petitioner with personality disorder, not otherwise specified, which is a mental illness listed in the DSM IV. App.104,178. The government-recommended psychiatrists report also falsely stated that Dr. Alexy had found the Petitioner in need of therapy from a female therapist. App.103,175-76. Dr. Alexy denied both of these

8 representations. App.103-04. In his written report Alexy diagnosed Petitioner with no mental illness and had recommended no therapy. Id. The government psychiatrist subsequently admitted (in her Answer) these highly-prejudicial allegations were not in Dr. Alexys report. ECF32,174-77. As the District Court noted, Dr. Alexys report actually concluded that the Petitioner could function adequately as a practicing attorney. App.26. This was not in the government-recommended psychiatrists report. These misrepresentations are the mainstay of the fraud allegations at bar. The government-recommended psychiatrists report (dated December 24, 2008) specifically stated that Brown firmly believes he is obligated as a Christian to put obedience to Gods laws above human laws. App.6,n.2. This same report further noted that Brown expressed devaluing attitudes towards pharmacological or psycho-therapeutic mental health treatment and that he made sarcastic remarks devaluing authority of all types, especially mental health authority and the abortion industry. Id. Throughout the report the government-recommended psychiatrist faulted Petitioner for a lack of empathy regarding beliefs and views opposed by his religious faith and political orientation. App.98-99,158-60. The government-recommended psychiatrists report reached no conclusion as to Plaintiff s fitness under [the Indiana] Rule. App.26. The governmentrecommended psychiatrist admitted that she was

9 ordered to not state her opinion on that ultimate issue by the government social worker who was pre and post briefed as to what her report should contain. ECF32,165. This interference in the patientphysician relationship supports contract claims at bar. On January 22, 2009, the government social worker directing the private practice mental health practitioners tendered the psychiatrists report to the bar examiners. The social workers report faulted Petitioner for demonstrating a lack of empathy regarding issues associated with his beliefs during the 362 days that he was subjected to the non-bar examiners evaluation. ECF57-1,p.13;App.110,197. None of the reports at bar were in affidavit format. ECF57-1. Nor did any contain a jurat, nor did any convey sworn testimony nor were any subjected to cross-examination. The reports were tendered to the bar examiners with little or no evidentiary foundation, including no testimony whatsoever. The bar examiners weighed the reports heavily in their decision to deny Petitioners motion to enter the Indiana bar, reproducing multiple pages of the psychiatrists report in their order. ECF52-2. Their final determination of September 25, 2009 denied Petitioner bar entrance and ordered that he not seek admission again until 2014, App.26, based, in large part, upon the government investigators refusal

10 to recommend Petitioner as an Indiana attorney. ECF52-2,p.11. On December 8, 2009, Petitioner filed civil conspiracy claims under 42 U.S.C. 1983, alleging federal and state constitutional violations, as well as statutory and common law torts and breaches of contract. Petitioner alleged that the Defendants acted in collusion and out of biases, invidious discriminatory intent and animus to advance a conspiracy to fail him through the [investigatory] process in which they had targeted him because of his . . . beliefs . . . and . . . political perspective. App.64-113,1-2,1417,36-40,52-56,64,85-87,92-94,133,140,160-62,169, 180,189,197-99,204-07,265. Petitioner sought no remedies against the bar examiners and no remedies for harms occurring prior to January 25, 2008 or after January 22, 2009. Petitioner specifically swore off any and all claims against the bar examiners, both as to harms alleged and as to remedies sought in the verified complaint. App.68-69,21-23. Petitioner named the government social worker and supervising attorney (who are accorded good faith immunity pursuant to Indiana statute Admin. Disc. R. 31, 10). App.66-67,1213. Plaintiff also named the government-recommended psychologist and government-recommended psychiatrist. App.67,14-15. B. Statement of proceedings below The district court dismissed, finding that Petitioners civil rights claims were barred under

11 Rooker-Feldman because they were inextricably intertwined with the Indiana Supreme Courts adjudication of Petitioners bar application. App.31-45. The District Court also found that all claims against the report-tendering defendants were barred by absolute 4 immunity. App.55-57. The Circuit Court upheld the District Court in an opinion closely tracking the same as to legal analysis. App.9-19. C. Statement on Issues Presented Framing Issue I: The foundation Rooker-Feldman doctrine of the

Rooker v. Fid. Trust Co., 263 U.S. 413 (1923) construed 28 U.S.C. 1257 as standing for the proposition that state court losers are implicitly barred from retreating to the federal district court and pleading their loss as justiciable harm. Sixty years later Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) built upon Rooker while addressing the denial of a license to practice law. Attorneys Feldman and Hickey sued the bar examiners, seeking an order from the federal district court that would have seated them in the D.C. bar. The federal order sought would have directly overruled the final order
This grant of immunity is challenged since an eventual victory on questions I or II would prove merely pyrrhic if all four individually-named Defendants remain absolutely immune from litigation.
4

12 of the (in essence state) bar examiners. Such a federal filing was deemed a violation of 28 U.S.C. 1257 by a majority of the Court. 1. The Reasonable Opportunity test The Eleventh Circuit noted that Feldman was a sea-change in the law governing subject matter jurisdiction in Wood v. Orange County, 715 F.2d 1543 (11th Cir.1983), cert. denied, 467 U.S. 1210 (1984) (Wood). The Wood Court recognized Feldman as overruling its previous narrow guidance on the application of Rooker, stating that Feldman had breathed new life into the Rooker doctrine as traditionally conceived. Id.,1547. While not pairing Feldman to Rooker, the Wood Panel did create this test: a federal district court may not assume jurisdiction over issues that the plaintiff failed to present to state courts [if] the plaintiff had a reasonable opportunity to raise his federal claim in state proceedings. Where the plaintiff has had no such opportunity, he cannot fairly be said to have failed to raise the issue. Id. This test remains the law of the Eleventh Circuit and, it would appear, the Seventh (via Bowman). See, e.g., Sharpe v. Tomlinson, 2010WL5647641 (M.D.Ga.2010).

13 2. The Inextricably Intertwined test The so-called Rooker-Feldman doctrine made its first circuit court appearance in Texaco, Inc., v. Pennzoil Co., 784 F.2d 1133 (2d Cir.1986), overruled by Penzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987): The rationale behind the Rooker-Feldman principle is clear and sound. In this nation we have two essentially separate legal systems. [ ] [T]his dual system could not function if state and federal courts were free to fight each other for control of a particular case. Thus, in order to make the dual system work and to prevent needless friction between state and federal courts,[ ] , it was necessary to work out lines of demarcation between the two systems. [ ] Id.,784 F.2d at 1142. Justice Thurgood Marshalls Pennzoil concurrence proved foundational to the inextricably intertwined test. The language is found in Feldman, but took on new significance when Justice Marshall noted 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

14 other than a prohibited appeal of the statecourt judgment. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 23, 25 (1987) (Marshall, J., concurring) (Pennzoil). Lower district courts followed suit and the Rooker-Feldman doctrine, as well as its inextricably 5 intertwined test, became commonplace. 3. Recent decisions of this Court communicate the need to rein in the doctrine This Court has analyzed the Rooker-Feldman doctrine twice in the past seven years. In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005) (Exxon), this Court sought to clarify the limited circumstances in which Rooker-Feldman bars subject matter jurisdiction. Id.,291, 125 S.Ct. 1517. The unanimous Court noted that the doctrine had been [v]ariously interpreted in the lower courts.

Susan Bandes alleges that the federal district courts employ Rooker-Feldman as a docket-clearing workhorse. The Rooker-Feldman Doctrine: Evaluating Its Jurisdictional Status, 74 NOTRE DAME L.REV. 1175 (1999). Dustin Buehler reports that in the year between February 2006-07 district courts analyzed the applicability of Rooker-Feldman in 524 cases, employing it to bring a swift end to litigation in almost 73% of those cases. Revisiting Rooker-Feldman: Extending the Doctrine To State Court Interlocutory Orders, 36 FL.ST.UNIV.L.REV. 373, 375, n.17 (2009).

15 Id. The Court noted that these various interpretations had sometimes extended the court-made Doctrine far beyond the contours of the Rooker and Feldman cases. Id.,283, 125 S.Ct. 1517. Less than one year after Exxon, this Court again addressed Rooker-Feldman. Lance v. Dennis, 546 U.S. 459 (2006) (Lance) again called Rooker-Feldman a narrow doctrine that applies only . . . where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court. Id.,464, 466, 126 S.Ct. 1198. (emp.add.). Professor Erwin Chemerinsky notes that in light of Exxon and Lance [i]t is unclear what the RookerFeldman doctrine adds to other doctrines. . . . FEDERAL JURISDICTION 8.1 (Aspen 5th ed., 2007). Chemerinsky finds Exxon applying the doctrine only when a losing party in state court seeks to relitigate the same matter in a federal district court. Id.,482,n.8 (emp.add.). Lance applies [the doctrine] only when a party from a state court proceeding [petitions to have] the federal court overturn the state courts judgment. Id.,823 (emp.add.). It is instructive to note that Chemerinsky does not discuss RookerFeldmans inextricably intertwined clause in his 2007-issued fifth edition.
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16 REASONS FOR GRANTING THE WRIT AS TO ISSUE I I. Bowman failed to utilize the four-part test distilled from Exxon, and rather turned to pre-2005 precedent to define RookerFeldmans contours

All of the circuits have had ample opportunity to interpret Rooker-Feldman since Exxon and Lance. In Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir.2010) (hereinafter Great Western), the Third Circuit Court of Appeals cautioned district courts to not rely on pre-Exxon formulations such as inextricably intertwined, id.,166, as part and parcel of the reining in, and rather mandated they use this four-part test to determine if Rooker-Feldman denies subject matter jurisdiction: (1) Plaintiff lost in state court; (2) Plaintiff complains of injuries caused by the state-court judgment; (3) State judgment was rendered before the federal suit was filed; and (4) Plaintiff invites the federal court to review and reject the state judgment. Id.,170. All four must be satisfied to justify the denial of jurisdiction under this re-imaging of RookerFeldman. Id. Rather than adopting the above Rooker-Feldman analysis, the Seventh Circuits Bowman decision builds an alternative interpretation of Exxon and Lance through recourse to numerous pre-2005 cases. After conceding that Petitioner did not explicitly request a lower federal court to overturn an

17 inconsistent state court judgment, App.11, the Panel yet found Rooker-Feldman to apply since the pleadings were merely an artful attempt to get around Rooker-Feldman. Id. This is demonstrated, the Panel reasoned, since even though the Petition was not attacking the state court judgment or seeking its review it could still be said that the gravamen of [Petitioners] complaint require[d] the district court to review the state judicial proceeding. Id. Yet Petitioner names no Defendants who were parties to the previous bar application hearing, pleads no harms arising out of the November 16, 2009 denial of the same, and specifically swears off any and all relief directed toward the denied bar application. App.67-71. Bowman stretches Rooker-Feldman far beyond post-Exxon bounds by interpreting the doctrine as categorically forbidding federal court review of state judicial proceeding[s], id., while at the same time granting such previous state judicial proceedings a preclusive effect far beyond that defined by the law governing preclusion. Bowman is a clear rejection of the Exxon-Lance limitation on Rooker-Feldman. II. Bowmans reliance upon pre-2005 case law caused it to reject the Exxon-approved holding in GASH v. Village of Rosemont

Bowman reaffirms a bias against constitutional claims initially aired in state court proceedings:

18 [C]onstitutional claims that are inextricably intertwined with state court judgments of necessity call upon the district court to review the state court decision and are thus beyond the district courts jurisdiction. Young v. Murphy, 90 F.3d 1225, 1231 (7th Cir.1996). Young is in conflict with GASH Associates v. Village of Rosemont, 995 F.2d 726 (7th Cir.1993). GASH held that a federal plaintiff presenting some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party is not to be denied jurisdiction under Rooker-Feldman. Id.,728. Such claims are rather to be reviewed under principles of preclusion. Id.6 GASH supports the reining in of RookerFeldman. Young supports the opposite. This Court ruled, in 2005, that Rooker-Feldman does not stop . . . district court[s] from exercising subject-matter jurisdiction because a party attempts to litigate in federal court a matter previously litigated in state court. Exxon, 1527 (citing GASH). It must be noted that while Petitioner did raise certain constitutional issues in his processing before
GASH has been cited more than 300 times in the federal court system, but not in Bowman. This further supports the observation that Bowman constitutes a sea-change in the jurisprudence of the Seventh Circuit (back toward pre-Exxon formulations).
6

19 the Indiana Supreme Court that were pled in the instant litigation, those same constitutional issues were then raised against the State of Indiana. They are now raised against the four Defendants in their individual capacities. It is likewise consequential that none of the torts pled, or relief sought, were an option in the previous litigation. All of the claims Petitioner filed in this instant litigation are independent under the standards set forth in GASH and Exxon. Yet the Bowman panel applied Young. III. Bowmans reliance upon pre-2005 case law led it to apply the inextricably intertwined test

After noting that Petitioner does not seek a federal order rejecting an injurious state court judgment, the Seventh Circuit frames the key question [as] whether Browns civil rights claims involving the process by which his application was evaluated are so inextricably intertwined with the Indiana Supreme Courts adjudication of his Bar application that in practical effect a lower federal court would be required to review a state court decision. App.11.

20 Bowman analyzes this key question in light of Taylor v. Fed. Natl Mortg. Assn, 374 F.3d 529 (7th Cir.2004): Though sometimes understandably labeled a metaphysical concept, the thrust of the inextricably intertwined inquiry asks whether the district court is in essence being called upon to review the state court decision. [ ] App.10 (citing Taylor, 374 F.3d at 532) (echoing Justice Marshalls acknowledgement that the question whether a federal constitutional challenge is inextricably intertwined with the merits of a state-court judgment may sometimes be difficult to answer. Pennzoil, 481 U.S. at 23). Bowman, therefore, stands for the proposition that Rooker-Feldmans inextricably intertwined test survived this Courts recent jurisprudence without revision. But see cases gathered, infra. IV. Bowmans reliance upon pre-2005 case law led it to apply the reasonable opportunity test in conflict with the Sixth Circuit

The Bowman Panel next inquired whether the plaintiff had reasonable opportunity to raise his issues in state court proceedings (or rather held them back). The Circuit Court rescued this Wood Court analysis out of Brokaw v. Weaver, 305 F.3d 660, 667 (7th Cir.2002) and Long v. Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir.1999). The take-away from these pre-2005 cases is that [i]f the plaintiff could

21 have raised the issue in state court [but did not, then] the claim is barred under Rooker-Feldman. Of course, if the plaintiff did raise the constitutional issues in state court, then they are labeled inextricably intertwined per Young. Reliance upon the reasonable opportunity analysis is yet more evidence of the instability of RookerFeldman analysis within the circuits. About three years before Bowman, the Seventh Circuit noted that the reasonable opportunity exception was developed during a time when federal courts applied RookerFeldman much more expansively, and opined that the reasonable opportunity exception . . . is of questionable viability in a post-Exxon era. Kelley v. Med-1 Solutions, 548 F.3d 600, 607 (7th Cir.2008). Clearly the Seventh Circuits Rooker-Feldman jurisprudence remains in flux and subject to various interpretations, with some interpretations more expansive than others. Not so in the Sixth Circuit, where the Wood Courts test has been superseded: We believe that the Supreme Courts recent decisions do not support the plaintiffs asserted reasonable opportunity exception to the Rooker-Feldman doctrine. Such an exception has been applied by various courts of appeals at one time or another, [ ] However, these cases were decided during a period of time in which many circuits, including this one, gave an expansive definition of the scope of the doctrine. [ ] More recently, the

22 Supreme Court has emphasized the doctrines narrow reach: [ ] Abbot v. Michigan, 474 F.3d 324, 330 (6th Cir.2007) (cit.omit.) The Seventh Circuit is, like most all other circuits, divided on the viability the inextricably intertwined test. The Bowman Panel stated: Though Brown focuses much of his appeal on the allegedly religiously biased JLAP evaluations and the conduct of JLAC members, these actions are intimately connected with the Indiana Supreme Courts adjudication . . . Because Browns claims of religious bias require a federal district court to review the judicial process followed by the Indiana Supreme Court in deciding the merits of Browns bar admission application, Browns claims are inextricably intertwined and fall squarely under Rooker-Feldmans jurisdictional bar. App.12-13. The judicial logic seems to be that intimately connected is, at least in a metaphysical way, much like inextricably intertwined, so even non-bar examiners are free to discriminate (at least in religious matters) without facing the risk of federal civil rights litigation.

23 Many of the circuits are conflicted, both internally and with one another, in their interpretation of Rooker-Feldman.7 V. The Second, Sixth and Third Circuits have abandoned inextricably intertwined analysis

In Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77 (2d Cir.2005), Judge John M. Walker notes that [l]ower courts have struggled to define RookerFeldmans reach. Id.,84. The Court concluded that some circuits construed the doctrine narrowly, some as essentially coextensive with claim and issue preclusion, and some even more liberally. Id. The Hoblock Court indentified the inextricably intertwined clause as the source of the latter interpretations, locating the source of that error in Feldman: The inextricably intertwined language from Feldman led lower federal courts, including this court . . . , to apply Rooker-Feldman too broadly. Id. After consideration of Exxon, the Second Circuit concluded that describing a federal claim as inextricably intertwined with a state-court judgment only states a conclusion. Id.,86. The court acknowledged that this Court had pared . . . Rooker-Feldman . . . to its core
This apparently simple and straightforward doctrine has been surprisingly difficult to apply, and throughout the federal system it has been explained, modified, and extended far beyond its origins. Susan P. Johnson, Application of the RookerFeldman Doctrine in Bankruptcy Cases, 15 NORTON JOURNAL OF BANKRUPTCY LAW AND PRACTICE 341 (2006).
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24 in Exxon, but commented that the Court declare[d] these requirements while scarcely elaborate[ing] on what they might mean. Id.,85-86. The murkiness of which Hoblock complains was lessened by the Lance decision less than one year later. Soon after Lance, the Sixth Circuit reasoned that the question of whether the injury complained of was inextricably intertwined with the state-court judgment has been supplanted by a post-Exxon focus upon the source of the injury. McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir.2006). Thus [t]o the extent that Defendants argue that [Plaintiff s] claims, even though they do not assert injury from the state court judgments, are inextricably intertwined with those judgments so as to fall within the reach of Rooker-Feldman, that argument must fail. Id.,394.8 The Sixth Circuit further note[d] that it was this exact [inextricably intertwined] language that was the source of the pre-Exxon Mobil woes as to the application of Rooker-Feldman. In addition, the
8

See also Pittman v. Cuyahoga County Dept. of Child and Family Services, 241 Fed.Appx. 285 (6th Cir.2007) (We have abandoned the inextricably intertwined analysis. Id.,*5); see also Kovacic v. Cuyahoga County Dept of Children and Family Services, 606 F.3d 301, 310 (6th Cir.), cert. denied, 131 S.Ct. 804 (2010).

25 Supreme Court used the phrase inextricably intertwined in Feldman to describe a claim where the plaintiff asserted an injury from the state court judgment itself. . . . In Exxon, the Supreme Court implicitly repudiated the circuits post-Feldman use of the phrase inextricably intertwined to extend RookerFeldman to situations [where] the source of the injury was not the state court judgment. In short, the phrase inextricably intertwined only describes the conclusion that a claim asserts an injury whose source is the state court judgment, a claim that is thus barred by Rooker-Feldman. Id.,394-95 (emp.add.). The Third Circuit has likewise ruled that the phrase inextricably intertwined does not create an additional legal test. Great Western, 615 F.3d at 170. A Pennsylvania district court recently went further, stating that: Reliance on the term inextricably intertwined proved difficult, [and] many courts appl[ied Rooker-Feldman] too broadly. Therefore, in 2005, the Supreme Court limited the application of Rooker-Feldman and rejected the courts use of the phrase inextricably intertwined to extend the doctrine to situations

26 where plaintiff s injuries were not the result of a state court judgment. McFall v. Fritsch, 2012WL1122789 (E.D.Pa.2012). VI. The First, Fifth and Ninth Circuits yet employ inextricably intertwined analysis

Lower courts of the First Circuit continue to employ inextricably intertwined analysis, albeit with reservations as to its continued viability: Exxon Mobil did not explicitly void the inextricably intertwined language, but given the strict standard it set forth for applying Rooker-Feldman, commentators have inquired into the continued viability of inextricably intertwined. See Allison B. Jones, note, The Rooker-Feldman Doctrine: What Does It Mean To Be Inextricably Intertwined? 56 DUKE L.J. 643 (2006). Donovan v. Fowle, 762 F.Supp.2d 186, 197, n.4 (D.Me.2011) (citing Sheehan v. Marr, 207 F.3d 35 (1st Cir.2000) (Sheehan) to interpret inextricably intertwined. Id.). See also In re Vazquez, 467 B.R. 550 (Bkrtcy.D.P.R. 2012) (quoting law review articles for post-Exxon authority on Rooker-Feldman, id.,553 and Sheehan for authority on the inextricably intertwined analysis, id.,554). A recent decision out of Louisiana likewise indicates uncertainty as to Rooker-Feldmans contours: The Fifth Circuit has acknowledged that courts often have difficulty determining

27 whether a state adjudication and a later federal action are so intertwined that the latter would amount to a review of the former. [ ] Recent district court opinions acknowledge that the Fifth Circuit itself has yet to articulate its own definition of inextricably intertwined, although the Fifth Circuit has previously held a court to be without subject matter jurisdiction where the plaintiff s contentions were ground[ed] in some aspect of the prior proceeding. . . . Wylie v. Bank of New York Mellon, 2012WL729842, *4 (E.D.La.2012) (emp.add.). The district court turned to a series of unpublished Fifth Circuit decisions to distill the following: In each of these [Fifth Circuit] cases, the court focused on the inextricably intertwined language to invoke Rooker-Feldman, rather than considering whether the current federal action technically sought a reversal or modification of the state judgment. . . . Any problems with the process utilized in the foreclosure proceeding are inextricably intertwined to that proceeding, and they cannot now be argued before this Court. Id.,*5.
9

When federal claims are inextricably intertwined with the challenged state court judgment, the judgment is collaterally attacked, [ ] and the Fifth Circuit has held that collateral attacks (Continued on following page)

28 District courts of the Ninth Circuit likewise deploy the so-called docket-clearing workhorse: The Rooker-Feldman doctrine . . . applies when federal plaintiffs seek relief from a state court judgment on the basis of an erroneous decision by the state court or where claims raised in the federal action are inextricably intertwined with the state court decision such that adjudication in federal court would undermine the state court ruling or require interpretation of state laws or procedural rules. [ ] If a litigant did not argue a claim in state court, the federal court may not consider the claim if it is inextricably intertwined with a state court claim. Feldman, 460 U.S. at 483. Collins v. Washington, Dept. of Labor and Industries, 2012WL1033567, *5 (W.D.Wash.2012) (emp.add.).10

on state court judgements implicate the Rooker-Feldman doctrine. [ ] Id.,*2. See also Chamberlain v. 625 Orleans, LP, 2011WL1627080 (E.D.Tex.2011). (Under the Rooker-Feldman doctrine, this Court does not have the authority to interfere with a state court proceeding. Id.,*4) 10 Professor Dustin Buehler recently concluded that it is unclear whether Rooker-Feldman applies to interlocutory state court orders, and whether the doctrine bars claims that are inextricably intertwined with a state court judgment. Jurisdiction, Abstention, and Finality: Articulating a Unique Role for the Rooker-Feldman Doctrine, 42 SETON HALL L. REV. 553, 558 (2012), available at http://ssrn.com/abstract=1772274.

29 VII. The Eighth Circuit is divided on the viability of inextricably intertwined analysis

Dodson v. University of Ark. for Med. Sciences, 601 F.3d 750 (8th Cir.2010), cert. denied, 131 S.Ct. 902 (2011) documents conflict within a circuit as to when to apply the doctrine. The court applied RookerFeldman to end Dodsons litigation, even while confessing tension as to the doctrines contours given conflicting holdings in recent decisions. Id.,755,n.5.11 Circuit Judge Michael J. Melloy concurred in the majoritys disposition of the case while dissenting from the majoritys application of Rooker-Feldman. 601 F.3d at 757. Judge Melloy credited Dodson for squarely present[ing] a lingering question in our Rooker-Feldman jurisprudence. That question being whether the inextricably intertwined language has any independent significance[?] Id.,757. That is, whether inextricably intertwined should be allowed to stand alone as a test, as it boldly does in Bowman, or whether, as in the majority of other circuits, the inextricably intertwined language in Feldman . . . imposes [no] independent substantive test for indirect

See, e.g., In re Paulson, 2012WL761260 (Bkrtcy.D.S.D.2012) (The [Rooker-Feldman] doctrine is not without its exceptions, at least in some jurisdictions . . . However, the Eighth Circuit Court of Appeals has generally been unwilling to create such exceptions. Id.,*2. The Paulson court relied (almost exclusively) upon cases decided prior to 2005 to define the doctrine.

11

30 appeals from state-court judgments[?] Id.,758. Judge Melloy dissented due to his belief that the Eighth Circuit erred by approving the district courts dismissal as inextricably intertwined with previous statecourt judgments, thereby ignoring Exxons limitation on Rooker-Feldman. Id.,760. Judge Melloys concurrence surveys the application of Rooker-Feldman across the circuits to demonstrate that the circuits are far from uniform on the application of this test for subject matter jurisdiction both across and within. The recent cases marshaled, supra, demonstrate that ambiguity stalks the application of inextricably intertwined well into 2012. Rooker-Feldmans subject matter jurisdiction analysis, and especially its metaphysical side, is as dependent upon the judge as upon the pleadings, resulting in fragmentation rather than uniformity. CONCLUSION AS TO ISSUE I Federal litigators are at a great disadvantage when analyzing civil rights cases (among others) if the circuit courts have numerous options from which to choose as to subject matter jurisdiction, as is the present situation in the First, Fifth, Seventh, Eighth and Ninth Circuits. Even in those circuits that have limited or rejected inextricably intertwined analysis the Second, Third and Fourth, the continuing viability of Justice Marshalls Pennzoil concurrence threatens a retreat to pre-Exxon cases in a bid to redeploy this docket-clearing workhorse. Such a

31 state of flux in a matter as important as subject matter jurisdiction causes some to wish ill of RookerFeldman.12 Framing Issue II: The foundation of the Equal Protection challenge In Willowbrook v. Olech, 528 U.S. 562 (2000) this Court re-affirmed that The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the States jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Id.,528 U.S. at 524 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918)). Petitioner alleges that the very focus of his processing through the non-bar examiners program constituted discrimination under the Fourteenth Amendment

Judges and scholars have heaped scathing criticism on the so-called Rooker-Feldman doctrine. . . . They argue that the doctrine is confusing, . . . that it serves no useful purpose, . . . and that it gets conflated with abstention and preclusion doctrines. . . . Some even argue that the doctrine should be abolished outright. . . . After the Supreme Court [once again] emphasized the narrowness of the doctrine, . . . a few critics [most notably Justice John Paul Stevens] gleefully announced that Rooker-Feldman was finally dead. Buehler, Revisiting, 36 FL.ST.UNIV.L.REV., at 374-75.

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32 which arose out of the improper execution of delegated authority by state agents possessing qualified immunity by statute. Petitioners case is not on all fours with Feldman, as that Petitioner alleges harms against non-bar examiners and seeks remedies that would not affect the state courts bar application denial. That said, Petitioner is like Feldman in alleging that his constitutional rights were violated during bar application processing. (Petitioner also advances independent claims (tort, contract, statutory and state constitutional) not at bar in Feldman.) Yet Petitioners case was dismissed for want of subject matter jurisdiction under Feldman.
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REASONS FOR GRANTING THE WRIT AS TO ISSUE II I. The Rooker-Feldman doctrine specifically handicaps the legal profession and no other profession

State-created rules governing the grant or denial of licenses must comply with constitutional standards and must be administered in accordance with due process of law. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 488 (Stevens, J., dissenting). This principle governs every profession in America save one the legal profession. While any other license seeker who alleges capricious or discriminatory processing can retreat to federal court and file

33 an action under 42 U.S.C. 1983, those seeking admission to a state bar (be they fresh from law school or seasoned attorneys) do not enjoy the same federal judicial oversight that is afforded to physicians, contractors and all other licensure applicants. Bar applicants are allowed redress of grievances only in the very system that (allegedly) treated them discriminatorily or capriciously in the first place.13 II. Rooker-Feldman established a regime that ignores basic jurisdictional principles

Justice Stevens diagnosed an Equal Protection and Due Process conflict at Feldmans core: Given [the] acknowledged constitutional limitations on action by the State, it should be beyond question that a federal district court has subject matter jurisdiction over [a bar applicants] lawsuit raising federal
Judge Richard Posner has twice voiced concerns about the injustice of similar subject matter denials as a result of Rooker-Feldman: The claim that a defendant in a civil rights suit so far succeeded in corrupting the state judicial process as to obtain a favorable judgment is not barred by the RookerFeldman doctrine. Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir.1995). Otherwise there would be no federal remedy other than an appeal to the U.S. Supreme Court, and that remedy would be ineffectual because the plaintiff could not present evidence showing that the judicial proceeding had been a farce, cf. Moore v. Dempsey, 261 U.S. 86, 91 (1923) (Holmes, J.); one cannot present evidence to an appellate court. Loubser v. Thacker, 440 F.3d 439, 441 (7th Cir.), cert. denied, 548 U.S. 907 (2006).
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34 constitutional challenges either to licensing rules themselves or to their application in his own case. 460 U.S. at 488. Yet it is not beyond question that a bar applicant can access federal district court to allege Fourteenth Amendment violations. Due to Feldman, it is rather beyond question that such an applicant cannot access the district court docket. Curiously, Justice Stevens dissented, the Court today ignores basic jurisdictional principles when it decides a jurisdictional issue affecting the licensing of members of the legal profession. Id. A quarter century earlier, in Schware v. Board of Bar Examiners, 353 U.S. 247 (1957), this Court ruled that [a] State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Id.,239. The separate plurality opinion from the Schware Court agreed, stating that [r]efusal to allow a man to qualify himself for the [legal] profession on a wholly arbitrary standard or on a consideration that offends the dictates of reason offends the Due Process Clause. Schware v. Board of Bar Examiners, 353 U.S. 247, 249 (1957) (Frankfurter, J., concurring, joined by Clark, J. and Harlan, J). In the years between Schware and Feldman the Seventh Circuit determined that it would be justified in interfering with bar applicant processing if faced with proof that a denial was predicated upon

35 a constitutionally impermissible reason. Whitfield v. Ill. Bd. Law Examiners, 504 F.2d 474 (7th Cir.1974). While such a reason was not found in Mr. Whitfields processing, then-Circuit Judge Stevens reasoned there may very well be situations in which a capricious denial by state officials may give rise to a federal remedy. Id.,477, citing Schware. III. Yick Wo reveals the fundamental injustice of the Rooker-Feldman regime

Nine years after Whitfield, Justice Stevens set forth a fact pattern demonstrating his concerns regarding the ultimate constitutionality of the Feldman decision: In my view, if plaintiffs challenging a bar admissions decision by a state court prove facts comparable to the allegations made by the appellants in Yick Wo v. Hopkins, 118 U.S. 356 (1886), they would clearly be entitled to relief in the United States District Court. If they were seeking admission to any other craft regulated by the state, they would unquestionably have such a right. 460 U.S. at 490, n.2. The Petitioner has set forth, in a verified complaint, App.64-113, and ancillary affidavits, ECF57, facts comparable to the allegations made by Yick Wo. See also Bowman Answer, ECF32. That gentleman faced discrimination in licensing due to his ancestry. Petitioner alleges discrimination based upon his religious beliefs, political views and alleged

36 lack of empathy for those holding beliefs opposed to his religion and political perspective. See factual recitation, infra. The Yick Wo Court held that when an otherwise impartial law is applied and administered by public authority with an evil eye and an unequal hand the Equal Protection Clause is violated. 118 U.S. at 373-74. Petitioner alleges a conspiracy to discriminate against Plaintiff [by non-bar examiners] that culminated in the filing of fraudulent reports obtained through unconstitutional means with the Board of Law Examiners that influenced said governmental body to Plaintiff s detriment. App.67,17. Yick Wo was the victim of unequal . . . unjust and illegal discrimination not visited upon his nonChinese peers in the laundry business. 118 U.S. at 373-74. Petitioner alleges acts taken under the color of law . . . in which an end goal was commonly pursued [to visit] adverse effects upon Plaintiff s free speech, free exercise, due process and/or equal protection rights, App.68,20, in a fashion not done to the bulk of Indiana law applicants. The Yick Wo Court remedied a denial of equal justice. 118 U.S. at 374. Petitioner asked the federal court to remedy a conspiracy to fail him . . . undertaken by agents acting in collusion and out of biases, invidious discriminatory intent and animus causing them to target him because of his [religious] beliefs and political perspective. App.113,265.

37 Despite these similarities to Yick Wo, both the district and circuit courts, in reliance upon RookerFeldman, determined that the Petitioner was not entitled to federal relief. Yet Mitchum v. Foster, 407 U.S. 225 (1972) construes [t]he very purpose of 1983, calling it a statute interpos[ing] the federal courts between the States and the people, as guardians of the peoples federal rights to protect the people from the unconstitutional action under color of state law, whether that action be executive, legislative or judicial. Id.,242, citing Ex parte Commonwealth of Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879). IV. Ideologically-driven inquisitions focused upon religious and political beliefs have no place in the American system of justice

Like Sarah Baird, Petitioner documents bar applicant processing focused upon beliefs and viewpoints. Baird v. State Bar of Ariz., 401 U.S. 1 (1971). Beliefs, empathy as to beliefs, religion and religious issues permeated Petitioners processing. See facts, infra. The MMPI-2 (and other testing devices employed to fathom Petitioners world view) intentionally gauged Petitioners religious beliefs and political perspectives under the guise of therapeutic review. App.76-83,60-88. These same beliefs and views then provided grist for both the non-bar examiners, and then the bar examiners determination of bar worthiness. ECF52-2.

38 Baird documents that politically-motivated, religiously-nuanced bar applicant processing is not without precedent: [I]deologically-driven state judiciaries once conducted inquisitions about beliefs and associations that ripened into refusals to let people practice law and hold public or even private jobs solely because public authorities have been suspicious of their ideas. Id.,401 U.S. at 3-4 (internal cites omitted). Bowman indicates that the inquisitions have now returned. As before, the ancillary litigation . . . raise[s] serious questions of alleged violations of the First Amendment and other guarantees of the Bill of Rights. Id. But the federal courthouse door wide open to such litigation in the days of Schware and Whitfield was slammed shut by Feldmans inextricably intertwined analysis. Bar applicants singled out for processing violative of due process and/or equal protection are now abandoned to plead those causes (if the applicants find the temerity) to the very system that allegedly visited the prejudicial harm upon them in the first instance. There is a hole in the constitutional safety net guarding the legal profession from constitutionallyimpermissible acts. That hole is Feldman. CONCLUSION AS TO ISSUE II Petitioner filed credible allegations that he was processed in a religiously and politically-biased

39 manner offending the dictates of reason. Yet Petitioner was estopped from bringing his claims in federal court by a broad reading of Feldman. Can such a denial of redress in the face of allegations of a corrupt[ed] state judicial process, n.14, supra, constitute anything other than a denial of the concept of equal justice undergirding our entire constitutional system? Framing Issue III: The foundation of the Absolute Immunity challenge The Bowman Panel concurred in the District Courts finding that all Defendants benefited from absolute immunity due to their function. App.19. Absolute immunity shields from liability however erroneous the act may have been, and however injurious in its consequences . . . to the plaintiff. Bradley v. Fisher, 80 U.S. 335, 347 (1871). The government attorney at bar, who supervised the government social worker at bar, has been granted this level of judicial absolute immunity, despite the fact that she is granted only good faith immunity by statute. The social worker at bar is likewise granted good faith immunity by statute. See Admin. Disc. R. 31 10. Good faith immunity is the same as qualified immunity according to Chemerinsky, 8.6.3. It is quite different from absolute immunity. According to this Court, qualified immunity shields government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or

40 constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This is the starting point for immunity analysis as to the government employees at bar, for [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. Burns v. Reed, 500 U.S. 478, 486-87 (1991).
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REASONS FOR GRANTING THE WRIT AS TO ISSUE III I. Bowman establishes a novel doctrine of government official immunity that is out of step with this Courts precedent

Inexplicably, rather than presuming qualified immunity, the Bowman Panel overruled both Indiana law and this Courts precedent when promoting the two governmental Defendants from good faith to absolute immunity due to their function in an alleged conspiracy to deny Petitioners civil rights.14

Although the Court only has recognized absolute witness immunity for judges, legislators, prosecutors, police serving as witnesses, and the president, other office holders contend that they, too, should be accorded absolute immunity. . . . [It] is likely that at some point the Court will be called on to decide the nature of the immunity to be accorded to officials such as social workers, probation officers, government mediators, and members of professional licensing boards. Chemerinsky, p.545.

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41 II. Bowman establishes a novel doctrine of witness immunity that is out of step with this Courts precedent

Additionally, the social worker, governmentrecommended psychologist and government-recommended psychiatrist at bar were accorded absolute immunity due to the fact that they tendered written reports that were reviewed by the bar examiners. The District Court reasoned, and the Circuit Court agreed, that this was sufficient to justify witness immunity, which is absolute immunity. This Court does not support such a grant of witness immunity. In Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983) (Briscoe), absolute immunity was found warranted only for testifying witnesses. This is because the truth-finding process is better served if the absolute immunity accorded testimony is submitted to the crucible of the judicial process so that the factfinder may consider it, after crossexamination, together with the other evidence in the case to determine where the truth lies. Id.,327, citing Imbler v. Pachtman, 424 U.S. 409, 440 (1976) (White, J., concurring in the judgment). The written reports tendered by the three Defendants were not in affidavit format, contained no jurat, were not moved into evidence, were not the subject of sworn testimony and were not subjected to crossexamination. In fact, there really is no testimony at bar, as Briscoe and its progeny defines testimony.

42 Nor does the record contain any court orders as to the government-recommended mental health authorities. They were not court appointed and not judicially supervised as they prepared and tendered their unsworn, allegedly biased (even fraudulent) reports to a government social worker. None of the three report writers at bar tendered their report under pains of perjury. None averred that their reports were accurate or truthful. (In fact, just the opposite is the case as to the psychologist, see App.76,61, and the psychiatrist, see App.79-80,75,78.) Simply put, the crucible of judicial process is not found in the record at bar. Yet both of the report-generating doctors and the report-generating social worker who appointed them have been granted absolute immunity based solely upon the tender of allegedly discriminatory reports. This is yet another sea change in the law found in Bowman. This immunity would serve to bar Petitioner from the relief sought even if subject matter jurisdiction existed. See n.4, supra. III. Bowmans witness immunity ruling is in conflict with the Sixth Circuit The Sixth Circuit Court is at odds with Bowman. Spurlock v. Satterfield, 167 F.3d 995 (6th Cir.1999) failed to extend witness immunity to a nontestifying police officer involved in a conspiracy to frame Mr. Spurlock. The court agreed that absolute

43 immunity was to be afforded police officers who actually testified (as to the substance of their testimony), but labeled incredible the idea that drafting fraudulent reports, conspiring against a defendant and other such non-testimonial acts fall within the ambit of the aforementioned absolute testimonial immunity. Id.,1001. See also Alioto v. City of Shively, Kentucky, 835 F.2d 1173 (6th Cir.1987) (summary judgment [based on witness immunity] in favor of defendants who did not testify, based on the doctrine of absolute testimonial immunity, was improper. Id.,1174-75). IV. Bowmans witness immunity ruling is in conflict with the Ninth Circuit The Ninth Circuit concurs: Our cases and Spurlock, then, demonstrate that, as the district court held, [ ] absolute witness immunity does not shield an outof-court, pretrial conspiracy to engage in non-testimonial acts such as fabricating or suppressing physical or documentary evidence or suppressing the identities of potential witnesses. Paine v. City of Lompoc, 265 F.3d 975, 983 (9th Cir.2001).

44 V. Bowmans witness immunity ruling is in conflict with the Fifth Circuit

Keko v. Hingle, 318 F.3d 639, 642-43 (5th Cir.), rehg en banc denied, 61 Fed.Appx. 123 (2003) illustrates how far Bowman diverges from the standard analysis as to witness immunity. A medical doctor was sued under the theory that he conspired with state actors to fabricate a criminal case. Keko, 318 F.3d at 644. The doctors testimony as a prosecution witness was at issue, as he stood accused of using shoddy and unscientific research techniques that resulted in a report critical to a baseless murder prosecution. Id. The doctors report came into evidence when he testified under oath (but not subject to crossexamination) at a probable cause hearing. The Fifth Circuit found the probable cause hearings testimonial and evidentiary context insufficient to justify witness immunity. The Court rather deemed the medical doctor an investigator rather than witness. Finding no obvious reason why the testifying medical doctor should enjoy immunity greater than that of other investigators, the prosecution witness was accorded qualified immunity as would be granted to the police for comparable activities. Id. He was thus to stand in the dock for the content of his report and his testimony at the hearing. The Keko Court could not justify according the medical doctor absolute witness immunity because this Court had bounded absolute immunity within

45 the precise confines of adversarial judicial proceedings. 318 F.3d at 642-43 (citing gathered cases). Five years later, in Brown v. Miller, 519 F.3d 231, 237 (5th Cir.2008), the Fifth Circuit again found no rationale for granting nontestifying prosecution expert witnesses greater immunity than granted any other government investigators, which is good faith immunity. See also Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432, 441 (6th Cir.2006). VI. Bowmans absolute immunity ruling is in conflict with Wyatt v. Cole Spurlock, Keko, Paine and Briscoe all fail to accord absolute witness immunity to report writers, even if the report writers are government agents or mental health authorities preferred by government social workers, because such report writers are not witnesses. If not witnesses, then what describes the role assumed by the government-recommended psychologist and psychiatrist at bar, and what immunity are they to be accorded? Wyatt v. Cole, 504 U.S. 158 (1992) is instructive. Property was seized pursuant to a replevin statute mandating the involvement of the local sheriff. After prevailing despite the replevin action, the owner of the officially-seized property sued under 42 U.S.C. 1983, alleging collusion to a degree bringing the private actors under 1983s via in concert analysis. Certiorari was granted on the question of whether private persons, who conspire with state officials to

46 violate constitutional rights, have available the good faith immunity applicable to public officials. Id.,168. This Court answered no. Wyatt closes the door to any immunity for the mental health authorities at bar, who were retained by Petitioner (generating the contract and patient confidentiality-based claims at bar), not paid by the government, and who were merely recommended by the governmental defendants, not appointed by court order or the Indiana bar examiners. The doctors at bar were not public officials, and so do not qualify for qualified immunity. CONCLUSION AS TO ISSUE III Bowmans broad grant of absolute immunity to a government attorney and report writing mental health authorities not subjected to the crucible of judicial process or the risk of perjury conflicts with this Courts precedents as well as many circuits. The government officials at bar are accorded qualified immunity by statute and by presumption. Mere report writing does not qualify one as a witness, and thus none of the mere report writers at bar qualify for witness immunity. The doctors at bar, being neither witnesses nor public officials, are to be accorded no immunity.
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47 CONCLUSION For the aforementioned reasons Petitioner prays that the petition be granted. Respectfully submitted, CHARLES RICE NOTRE DAME LAW SCHOOL P.O. Box 780 Notre Dame, IN 46556 (574) 850-1563 Charles.E.Rice.1@nd.edu

App. 1 In the United States Court of Appeals For the Seventh Circuit
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No. 11-2164 BRYAN J. BROWN, Plaintiff-Appellant, v. ELIZABETH BOWMAN, et al., Defendants-Appellees.

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Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:09-cv-346-TLS Theresa L. Springmann, Judge.
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ARGUED OCTOBER 20, 2011 DECIDED FEBRUARY 2, 2012

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Before CUDAHY, KANNE and SYKES, Circuit Judges. CUDAHY, Circuit Judge. This case involves the scope of the RookerFeldman doctrine and whether the district court properly applied that doctrine to appellants 42 U.S.C. 1983 claims. In April 2007, appellant Bryan Brown applied for admission to the Indiana Bar. As part of

App. 2 his application process, the Indiana Board of Law Examiners (BLE) requested that Brown attend hearings to investigate his application and also required Brown to be evaluated by mental health professionals. The BLE ultimately denied Browns admission application and, after exhausting his appeals to the Indiana Supreme Court and the United States Supreme Court, Brown brought suit in the district court. His complaint, lodged against various state actors involved in his application process, alleged that the evaluation of his application focused on his religious beliefs (ostensibly Roman Catholic) and violated his constitutional rights. The district court dismissed his complaint without prejudice for lack of subject matter jurisdiction under RookerFeldman. The district court also found that the defendants were immune from civil suit. On appeal, Brown raises two issues: (1) whether the district court erred in dismissing his federal suit under Rooker-Feldman; and (2) whether the district court erred in finding that defendants were entitled to immunity. For the reasons that follow, we affirm the district courts finding that Rooker-Feldman applies and decline to assess whether the district court was correct in ruling in the alternative that the defendants were immune from suit. Indianas constitution provides that the states supreme court shall have original jurisdiction in admission to the practice of law. IND. CONST. art. VII, 4. Pursuant to this authority, the Indiana Supreme Court has adopted Admission and Discipline Rules,

App. 3 which govern the process of admission to the Bar. Rule 9 establishes the Indiana Board of Law Examiners (BLE). This body must report and certify to the [Indiana] Supreme Court that the applicant, after due inquiry, has been found to possess the necessary good moral character and fitness to perform the obligations and responsibilities of an attorney practicing law in the State of Indiana, and has satisfied all general qualifications for admission. Rule 12 1. In determining whether an applicant possesses good moral character and fitness, relevant disqualifying considerations may include, but are not limited to the following: unlawful conduct; academic misconduct; making of false statements, including omissions; misconduct in employment; acts involving dishonesty, fraud, deceit or misrepresentation; abuse of legal process; neglect of financial responsibilities; violation of an order of a court; evidence of mental or emotional instability; evidence of drug or alcohol dependency; denial of admission to the bar in another jurisdiction on character and fitness grounds; and disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction. Rule 12 2. In accordance with Rule 12, the BLE may refer an applicant to the Judges and Lawyers Assistance Program (JLAP) for evaluation. Rule 31 8(c).

App. 4 The JLAP is designed to assist impaired members in recovery; to educate the bench and bar; and to reduce the potential harm caused by impairment to the individual, the public, the profession, and the legal system. JLAP Guidelines 2. JLAP is administered by a committee, which provides assistance to judges, lawyers and law students who are impaired by, among other things, mental health problems. The Judges and Lawyers Assistance Committee (JLAC) comprises qualified personnel approved by the Indiana Supreme Court. On request, the committee will issue a report of evaluations made by its approved health providers for the use of the BLE in reviewing a bar admission application. Based on an application, hearings and evaluations, the BLE must make a determination as to an applicants admission to the Bar. If the BLE finds that an applicant is not eligible for admission, the applicant may request a hearing (where the applicant has rights of subpoena and examination of witnesses). Rule 12 9(e) & (f). If the BLE confirms its decision to deny the applicant admission, it must issue a final report of the proceedings, including specific findings of fact, conclusion and recommendations. Rule 12 9(h). The applicant may appeal to the Indiana Supreme Court. Rule 14 2. The only court in which the applicant can then seek further review is the Supreme Court of the United States. 28 U.S.C. 1257. In April 2007, Brown sought admission to the Indiana Bar. On the basis of his application, the BLE

App. 5 requested a hearing. After the hearing, the BLE referred him to JLAP for evaluation. See Rule 31 8(c). Defendant Tim Sudrovech, the Clinical Director of JLAP, referred Brown to psychologist Stephen Ross, also a defendant. Ross met with Brown twice over the course of several months and performed three psychological examinations on him. Based on this, Ross issued a report noting the possibility of a sub-clinical bipolar disorder of a hypomanic type but concluding that nothing should preclude Browns application from going forward. Order 4. Ross also opined that Browns interpersonal style warranted further consideration by a psychiatrist and a psychiatric interview was arranged. Brown then wrote two letters to defendant Ross requesting him to change his report. These letters expressed Browns concerns regarding the political and religious content of Rosss questions, questioned the scientific validity of the tests used and disagreed with Rosss suggestion that he undergo further psychiatric evaluation for a possible bipolar disorder. Brown later sent another letter to defendants Sudrovech and Terry Harrell, Executive Director of JLAP. This letter also raised concerns about the evaluation process and requested an independent review of his case by state officers trained in constitutional and civil rights law. Order 5. The following day, Brown requested permission to be evaluated by a psychiatrist of his own choosing. Sudrovech denied this request stating that evaluations were to be provided by a psychiatrist from the JLAP providers

App. 6 list.1 Id. Brown eventually acquiesced to Sudrovechs request that he see a JLAP-approved psychiatrist and scheduled an appointment with Dr. Elizabeth Bowman, who is also a defendant here. Id. Bowmans evaluation of Brown involved his visiting Dr. William Alexy, who conducted a psychological examination of Brown. On the basis of several interactions with Brown, defendant Bowman subsequently issued a report, in which she concluded that Brown suffered from a personality disorder, not otherwise specified.2 Order 6. In response to Bowmans report, Brown sent multiple letters to the BLE again expressing his concerns about the JLAP and BLE process, and the religious cast of his evaluations by Drs. Bowman and Ross. Brown made more than sixty complaints to the JLAP and BLE about Bowmans opinion and requested a civil rights investigation. Sudrovech, after reviewing Bowmans report, prepared a report on behalf

Despite this denial, Brown went ahead and met with his choice, Dr. Bryan Flueckiger, who issued a report on May 1, 2009 stating that Brown satisfied the requirements of Rule 12 and recommended that he be permitted to sit for the Indiana bar examination. 2 Dr. Bowmans report specifically stated that Brown firmly believes he is obligated as a Christian to put obedience to Gods laws above human laws. Dr. Bowman further noted that Brown expressed devaluing attitudes towards pharmacological or psycho-therapeutic mental health treatment and that he made sarcastic remarks devaluing authority of all types, especially mental health authority and the abortion industry.

App. 7 of JLAP to assist the BLE in making its final decision on Browns bar application. In a letter dated February 11, 2009, the BLE notified Brown that he would not be admitted to the Indiana bar because he was unable to demonstrate good moral character and fitness under Admission and Discipline Rule 12. Pursuant to Rule 12 7, Brown requested a hearing with the BLE. Prior to the hearing Brown requested a more definite statement as to why his application had been denied. The BLE also obtained certain other information relating to a disciplinary action against Brown in Kansas (where he had been admitted to the bar), the full results of Browns psychological and psychiatric evaluations and his voluminous correspondence with JLAP and with his character and fitness evaluator. At the hearing, Brown called no witnesses but submitted Bowmans report. He argued that Bowmans religious beliefs rendered her incapable of evaluating him objectively. After the hearing, Brown filed several motions and sought reconsideration of his application denial and an independent civil rights investigation. The BLE issued a report with its factual and legal findings and a recommendation that Brown not be admitted to the Indiana bar. Brown then appealed to the Indiana Supreme Court. On November 16, 2009, the court issued an order stating that [a]fter review of the submissions of the parties, it is the Courts determination that the BLEs decision should stand. In re Bar Applicant 24128, No. 94S00-0910-BL-446, at 1 (Ind. Nov. 16, 2009).

App. 8 Thereafter, the United States Supreme Court denied Browns petition for certiorari. On December 8, 2009, Brown filed suit in district court alleging twenty-six counts of federal and state constitutional, state statutory and common law violations. Brown named as defendants in his federal suit Drs. Bowman and Ross, Harrell, individually and in her official capacity as Executive Director of the JLAP, Sudrovech, individually and in his official capacity as Clinical Director of JLAP, Randall Shepard, in his official capacity as Chief Justice of the Indiana Supreme Court and John Does and Jane Roes as co-conspirators. The bulk of Browns 1983 complaint alleged various violations of the First Amendment: five counts under the Free Speech Clause; three counts under the Free Exercise Clause; two counts under the Establishment Clause; and one count under the Assembly Clause. Four other counts alleged violation of Browns Due Process and Equal Protection rights under the Fourteenth Amendment. The remaining counts alleged violation of various state common law requirements, statutes and constitutional provisions. Defendants moved to dismiss Browns complaint citing lack of subject matter jurisdiction, lack of justiciability and various immunity defenses. The district court granted the motions to dismiss, finding that Browns civil rights claims were barred under Rooker-Feldman because they were inextricably intertwined with the Indiana Supreme Courts adjudication of Browns bar application and finding that

App. 9 Browns as-applied challenges to Admission and Discipline Rules 19 and 23 were unripe and did not present a case or controversy. Finally, the district court concluded that Shepard, the Supreme Court defendant, was absolutely immune under the Eleventh Amendment and that defendants Ross, Bowman and Sudrovech were entitled to absolute witness immunity. Brown raises two issues on appeal. First, he claims the district court erred in finding that the Rooker-Feldman abstention doctrine barred the action. Second, he claims error in the finding that Sudrovech, Bowman and Ross were absolutely immune from suit. I. Our review of a determination of subject matter jurisdiction based on the Rooker-Feldman doctrine is de novo. Taylor v. Fed. Natl Mortg. Assn, 374 F.3d 529, 532 (7th Cir. 2004). Rooker-Feldman prevents the lower federal courts from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced. Lance v. Dennis, 546 U.S. 459, 460 (2006) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). The reason, quite simply, is that no matter how erroneous or unconstitutional the state court judgment may be, only the Supreme Court of the United States has

App. 10 jurisdiction to review it. Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir. 2002). Rooker-Feldman bars federal claims in two instances. The first involves a plaintiff s request of a federal district court to overturn an adverse state court judgment. The second, and more difficult instance, involves federal claims that were not raised in state court or do not on their face require review of a state courts decision. Taylor, 374 F.3d at 532-33. In this latter instance, Rooker-Feldman will act as a jurisdictional bar if those claims are inextricably intertwined with a state court judgment. Id. at 533. Though sometimes understandably labeled a metaphysical concept, the thrust of the inextricably intertwined inquiry asks whether the district court is in essence being called upon to review the statecourt decision. Id.; see also Young v. Murphy, 90 F.3d 1225, 1231 (7th Cir. 1996) ([C]onstitutional claims that are inextricably intertwined with state court judgments of necessity call upon the district court to review the state court decision and are thus beyond the district courts jurisdiction.). The determination of whether a federal claim is inextricably intertwined hinges on whether it alleges that the supposed injury was caused by the state court judgment, or, alternatively, whether the federal claim alleges an independent prior injury that the state court failed to remedy. See Long v. Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir. 1999). An alleged injury is independent if the state court was acting in a nonjudicial capacity when it affected the plaintiff for

App. 11 example, if the state court was promulgating rules regulating the bar. Edwards v. Ill. Bd. of Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001). But finding that a federal claim is inextricably intertwined with a state court judgment does not end the inquiry. Once it is determined that a claim is inextricably intertwined, we must then inquire whether the plaintiff [did or] did not have a reasonable opportunity to raise the issue in state court proceedings. Brokaw, 305 F.3d at 667 (citing Long, 182 F.3d at 558). If the plaintiff could have raised the issue in state court, the claim is barred under RookerFeldman. On appeal, appellant argues that his federal suit does not run aground upon the narrow shoals of Rooker-Feldman because it is not calculated to overturn the Indiana Supreme Courts final judgment. True, appellants complaint does not explicitly request a lower federal court to overturn an inconsistent state court judgment, but that is not the only circumstance in which Rooker-Feldman applies. The key question is whether Browns civil rights claims involving the process by which his application was evaluated are so inextricably intertwined with the Indiana Supreme Courts adjudication of his Bar application that in practical effect a lower federal court would be required to review a state court decision. We addressed a similar question in Edwards v. Illinois Board of Admissions to Bar, 261 F.3d 723 (7th Cir. 2001), in which an Illinois bar applicant who was

App. 12 denied admission brought suit in federal court claiming that her application process violated the Americans with Disabilities Act (ADA). Id. at 725. Like appellant here, the plaintiff stressed that she was not seeking reversal of the decision to deny her admission to the bar. Id. at 726. Rather, she claimed that requiring the release of her medical records as part of the admission process violated the ADA. Id. In response, we stated: While she might not be asking us to review the state court order declining certification, granting the relief she requests would have that effect: she is asking for a remand so the district court may determine whether the Committee violated the ADA in treating [plaintiff s] decision not to release the records as it did. Id. at 731. Edwards federal claim involves not a direct challenge to a bar rule, but rather a challenge to the manner in which the Committee treated her application. This, we said, is precisely the type of claim that the Rooker-Feldman doctrine bars the lower federal courts from considering because it requires review of a state court decision in a particular case that arose out of judicial proceedings. Id. at 730. Here, appellants artful pleading cannot get him around Rooker-Feldman when the gravamen of his complaint requires the district court to review the state judicial proceeding. In Edwards, the plaintiff claimed that the process by which the state actors

App. 13 assessed her bar applications violated her constitutional rights. Here too, Brown challenges the manner in which the [BLE] treated his application. The Supreme Court has found such claims barred under Rooker-Feldman: If the constitutional claims presented to a United States District Court are inextricably intertwined with the state courts denial in a judicial proceeding of a particular plaintiff s application for admission to the state bar, then the District Court is in essence being called upon to review the state court decision. This the District Court may not do. Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983). Though Brown focuses much of his appeal on the allegedly religiously biased JLAP evaluations and the conduct of JLAC members, these actions are intimately connected with the Indiana Supreme Courts adjudication. Here, the Indiana Supreme Court, through its agent the BLE, commissioned the JLAC to assist it in processing Browns admission application. We agree with the district court that reviewing the JLACs actions in this context would require [the district court] to consider the Indiana Supreme Courts process of referring cases to the JLAC, reviewing how the JLACs information is utilized by the BLE, and finally reviewing the Indiana Supreme Courts ultimate resolution in the case of an individual seeking admission to the bar. Order 15. Because Browns claims of religious bias require a federal district court to review

App. 14 the judicial process followed by the Indiana Supreme Court in deciding the merits of Browns bar admission application, Browns claims are inextricably intertwined and fall squarely under Rooker-Feldmans jurisdictional bar. Further, a simple reading of Browns complaint shows that his religious discrimination claims in district court are essentially the same arguments he made to the Indiana Supreme Court. When a bar applicant has an opportunity before a state court to raise alleged errors of law and facts involving his admission application, that applicant is barred from subsequently raising similar claims in any federal court but the Supreme Court. Hale v. Comm. on Character & Fitness for State of Ill., 335 F.3d 678, 684 (7th Cir. 2003). In Hale, we again addressed the applicability of Rooker-Feldman to an aggrieved bar applicants federal claims. There, the applicant alleged various constitutional violations before the Illinois Supreme Court, and that court, in affirming the adjudicating committees admission decision, rejected those arguments. The applicant then brought a federal suit making many of the same contentions of religious bias as he had made before the state supreme court. Because the Illinois Supreme Court had the power to hear constitutional claims, and in fact the applicant had raised such claims there, we affirmed a dismissal of the action under RookerFeldman. Hale, 335 F.3d at 683 (citing In re Anastaplo, 121 N.E.2d 826, 828 (Ill. 1954) (Illinois Supreme Court resolves petitioners constitutional

App. 15 challenge to the Committees decision to reject his bar application)). Like the applicant in Hale, Brown had an opportunity to raise federal constitutional claims before a state court with power to adjudicate them. Thus, Indiana Admissions and Discipline Rule 14 2 provides that an applicant aggrieved by the final action of the BLE may file a petition with the Supreme Court of Indiana requesting review by [the] Court of such final determination, and setting forth specifically therein the reasons, in fact or law, assigned as error in the [BLEs] determination. . . . [T]he Court shall enter such order as in its judgment is proper, which shall thereupon become final. Rule 14 2. Brown did claim before the Indiana Supreme Court that he had suffered unconstitutional discrimination. As its order indicates, that court carefully reviewed these contentions and ultimately determined that they did not merit reversal of the BLEs admission determination. Because Brown is attempting to raise similar violations here, his claims are barred. Though appellant insists that he does not request reversal of the Indiana Supreme Courts admission decision, the casting of a complaint in the form of a civil rights action, however artful, cannot circumvent Rooker-Feldman. The civil rights claims are inextricably intertwined with (and were directly resolved by) the Indiana Supreme Courts adjudication of his admission application. We therefore affirm the dismissal of his constitutional claims under RookerFeldman.

App. 16 II. Brown raises a second issue of whether the district court erred in finding that defendants Bowman, Ross and Sudrovech are entitled to absolute 3 immunity. Although it is not necessary to decide this issue, because it was determined by the district court and raised on appeal, we believe it appropriate to discuss it briefly. In that regard, in determining whether a government official is entitled to immunity, this Court applies a functional approach. Auriemma v. Montgomery, 860 F.2d 273, 275 (7th Cir. 1988). That is, we look to the nature of the function performed, not the identity of the actor who performed it. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citing Forrester v. White, 484 U.S. 219, 229 (1988)). Contrary to appellants contention, witness immunity is not limited to in-court testimony. Wilson v. Kelkhoff, 86 F.3d 1438, 1443-44 (7th Cir. 1996) (prisoner review board members entitled to witness immunity); Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 1999) (commissioners of Indiana Civil Rights Commission entitled to immunity). As courtappointed experts requested to prepare reports in
The appellant formulated the issue on appeal as: Did the District Court err in extending absolute immunity to putative expert witnesses who were not subjected to the crucible of the judicial process? As we read it, Brown limits his arguments on the immunity issue to defendants Sudrovech, Ross and Bowman, who each issued expert reports in connection to Browns bar admission application. Accordingly, we too limit our review on appeal to those three defendants.
3

App. 17 connection with a judicial proceeding, defendants Sudrovech, Bowman and Ross are likely entitled to the absolute immunity traditionally provided to witnesses at common law. Ross, Bowman and Sudrovechs actions in this case are materially similar to those of other government officials to whom we have accorded witness immunity. In Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009), we explained that court-appointed experts, like child guardians, are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges do. Experts asked by the court to advise on what disposition will serve the best interests of a child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations without the worry of intimidation and harassment from dissatisfied parents. This principle is applicable to a childs representative, who although bound to consult the child is not bound by the childs wishes but rather by the childs best interests, and is thus a neutral, much like a court-appointed expert witness. Id. at 970 (internal citations omitted). Much like the expert witnesses in Cooney, these defendants were commissioned by the Indiana Supreme Court to issue objective and neutral reports on Browns mental health and fitness for the Indiana Bar. The BLE and Indiana Supreme Court relied on these reports in denying Browns admission to the bar. As state actors

App. 18 intimately connected with the BLE judicial process, defendants, like the child guardians in Cooney, are almost certainly entitled to immunity in order to preserve the authority of their evaluations. Browns complaint does not allege that defendants engaged in conduct beyond the scope of their court-appointed duties. Rather, all of the conduct Brown alleges involve a conspiracy to deprive him of his constitutional rights and were taken pursuant to those defendants court-appointed duties. Nor are we persuaded that the bar admission process lacks adequate procedural safeguards of which a disappointed applicant may avail himself. Brown had the opportunity to request a hearing before the BLE at which he could subpoena and examine witnesses. Rule 12 9(e) & (f). Applicants that are ultimately denied admission by the BLE can also file a petition to the Indiana Supreme Court alleging errors of law or fact by the BLE. Rule 14 2. These mechanisms of review provide ample safeguards to protect Browns due process rights. Because defendants were part and parcel of an adjudicatory process containing adequate procedural safeguards, Wilson, 86 F.3d at 1444, the defendants are likely entitled to the absolute immunity traditionally accorded to witnesses in connection with the judicial proceedings. Finally, we note that defendant Sudrovech is also likely entitled to immunity under the Admissions and Discipline Rules. Rule 31 10 provides that [the] Committee, Executive Director, staff, and volunteers are not subject to civil suit for official acts done in

App. 19 good faith in furtherance of the Committees work. Brown concedes that Sudrovech is entitled to immunity under this Rule. Appellants Br. at 41 (Defendants Sudrovech and Harrell are immune from civil suit only for official acts done in good faith in furtherance of the Committees work. ). Indiana law has recognized the merit of encouraging state actors who are involved in the bar admission and JLAP process to issue objective reports without being exposed to the threat of vexatious litigation. We find no reason, nor has Brown suggested any, to disregard or disturb this immunity scheme. However, we are not deciding this issue because, assuming that we are correct in our determination that the judge-made Rooker-Feldman doctrine applies in this case, there may be a jurisdictional objection. But, as the district court persuasively demonstrated, there does not seem to be much doubt as to the likely outcome on this question. For the foregoing reasons, the judgment of the district court is AFFIRMED.

App. 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION BRYAN J. BROWN, ) ) Plaintiff, ) v. ) CAUSE NO.: ) 1:09-CV-346-TLS DR. ELIZABETH BOWMAN, TERRY HARRELL, individually, ) ) and in her official capacity as Executive Director of the Judges ) ) and Lawyers Assistance ) Program, TIM SUDROVECH, individually, and in his official ) capacity as Clinical Director of ) the Judges and Lawyers Assis- ) tance Program, DR. STEPHEN ) ROSS, JOHN DOES and JANE ) ) ROES, co-conspirators, and ) RANDALL SHEPARD, in his official capacity as Chief Justice ) of the Indiana Supreme Court, ) ) Defendants. ) OPINION AND ORDER In this case, the Plaintiff seeks redress for alleged violations of various constitutional, statutory, and common law rights by a number of individuals involved in the Indiana bar admissions process. The Plaintiff is not suing the Indiana Supreme Court Board of Law Examiners (BLE) or any of its directors.

App. 21 Instead, he is suing the executive director and the clinical director of the Judges and Lawyers Assistance Committee (JLAC) and medical professionals associated with the Indiana Judges and Lawyers Assistance Program (JLAP), claiming that they conspired against him based upon his religious beliefs. Thus, the basic thrust of the Plaintiff s lawsuit is that those involved with the JLAC and the JLAP were biased against him because of his religious beliefs and that this bias resulted in a denial of his application for admission to the Indiana bar by the BLE and the Indiana Supreme Court. This matter is before the Court on a series of Motions to Dismiss filed by the Defendants. Before the Court can reach the merits of the Plaintiff s claims, the Court must first address some preliminary questions raised by the Defendants in their Motions to Dismiss, such as whether the Court has jurisdiction to review his claims or whether the Defendants are immune from suit. As the Court discusses in greater detail in this Opinion, the Court finds that it lacks jurisdiction to adjudicate the Plaintiff s claims and the Defendants are entitled to immunity. Consequently, the Court will grant the Defendants Motions to Dismiss. PROCEDURAL BACKGROUND On December 8, 2009, the Plaintiff filed a twentysix count Complaint [ECF No. 1], claiming, among other things, violations of various constitutional and

App. 22 statutory rights, and alleging a conspiracy to discriminate against him that culminated in a denial of his application for admission to the Indiana bar by the BLE and the Indiana Supreme Courts approval of the BLEs decision. In his Complaint, he named the following Defendants: Dr. Elizabeth Bowman, a psychiatrist on JLAPs approved providers list; Terry Harrell, JLAPs Executive Director; Tim Sudrovech, JLAPs Clinical Director; Dr. Stephen Ross, a clinical psychologist who examined the Plaintiff; John Does and Jane Roes, co-conspirators; and the Honorable Randall Shepard, Chief Justice of the Indiana Supreme Court. Counts 1-13 and 25-26 are brought pursuant to 42 U.S.C. 1983 alleging constitutional deprivations under the First and Fourteenth Amendments. These counts allege violations of different parts of the First Amendment: Counts 1-3 and 910 claim violations of the Free Speech Clause; Counts 4, 6, and 11 claim violations of the Free Exercise Clause; Counts 5 and 8 claim violations of the Establishment Clause; and Count 7 claims violation of the Assembly Clause. Likewise, the counts in the Complaint allege violations of different parts of the Fourteenth Amendment: Counts 12 and 25-26 claim violations of the Due Process Clause; and Count 13 claims violation of the Equal Protection Clause. The remaining counts (Counts 15-24) of the Complaint present claims under various state common law, statutes, and constitutional provisions. Counts 4-13, 16-19, and 21-23 are against Defendant Bowman; Counts 4-13 and 21-23 are against Defendant Harrell; Counts 4-13 and 20-23 are against Defendant

App. 23 Sudrovech; Counts 4-15 and 21-23 are against Defendant Ross; and Counts 1-10 and 24-26 are against Defendant Shepard. On December 16, 2009, the Plaintiff filed a Motion Seeking Temporary Equitable Relief [ECF No. 3]. On December 30, 2009, the Court issued an Order [ECF No. 22] denying the Plaintiff s Motion. On January 29, 2010, Defendants Shepard, Harrell, and Sudrovech (the Indiana Supreme Court Defendants) filed a Motion to Dismiss [ECF No. 27] and a Memorandum in Support [ECF No. 28]. On February 1, Defendant Ross filed a Motion to Dismiss [ECF No. 29] and a Memorandum in Support [ECF No. 30]. On February 24, Defendant Bowman filed a Motion to Dismiss [ECF No. 42] and a Memorandum in Support [ECF No. 43]. On March 29, the Plaintiff filed a Response to Defendants Motions to Dismiss [ECF No. 49]. On March 31, Defendant Bowman filed a Reply [ECF No. 50]. On April 8, Defendant Ross filed a Reply [ECF No.52] and the Indiana Supreme Court Defendants filed a Reply [ECF No. 53]. On April 26, the Plaintiff, with leave of Court, filed a Supplemental Brief [ECF No. 57], addressing the issue of absolute immunity. On May 5, Defendant Bowman filed a Reply Memorandum in Support of Motion to Dismiss Limited to Absolute Immunity [ECF No. 58]. On May 6, Defendant Ross filed a Supplemental Brief in Support of Motion to Dismiss [ECF No. 59]. On May 7, the Indiana Supreme Court Defendants filed a Supplemental Reply Memorandum Regarding Absolute Immunity [ECF No. 60]. The

App. 24 Motions to Dismiss are fully briefed and ready for ruling. FACTUAL BACKGROUND The Plaintiff applied for admission to the Indiana bar and alleges the following occurred after he submitted his application to the BLE.1 After the BLE processed the Plaintiff s application, it ordered a hearing on his application, which occurred on January 25, 2008. After the hearing, the BLE ordered the Plaintiff to participate in the JLAP. The Plaintiff met with Defendant Ross, a psychologist, who performed three psychological examinations over the course of two meetings with the Plaintiff. On April 23, 2008, Defendant Ross issued a report finding that nothing should preclude the Plaintiff s application from going forward, but he did note the possibility of a subclinical bipolar disorder of a hypomanic type. Doctors that subsequently evaluated the Plaintiff, including Doctors Sass, Flueckiger, Alexy, and Bowman, ruled out the possibility of a sub-clinical bipolar disorder. Six weeks after Defendant Ross issued his report, Defendant Sudrovech directed the Plaintiff to see a psychiatrist. The Plaintiff mailed letters on June 12 and 24, 2008, to Defendant Ross, and subsequently copied them to Defendant Sudrovech, requesting that Defendant Ross make changes to his report. The
The Plaintiff s allegations are all contained in his Verified Complaint [ECF No. 1].
1

App. 25 Plaintiff sent a copy of his June 24 letter to the BLE and expressed concern over the content (specifically the religious content) of Defendant Rosss psychological evaluations. Defendant Ross did not make any changes to his report. On July 30, the Plaintiff sent a letter to JLAP accepting Defendant Sudrovechs June 4 offer to provide a mentor through JLAP. The Plaintiff s June 30 letter also repeated his request for a meeting with the JLAC. On September 8, 2008, the Plaintiff sent a letter to Defendants Sudrovech and Harrell, raising concerns about the JLAP process being used to evaluate his candidacy for admission to the Indiana bar. On September 9, the Plaintiff requested that he be permitted to submit an evaluation by a psychiatrist of his own choosing. Defendant Sudrovech denied this request because evaluations were to be provided by a psychiatrist from the JLAP providers list. It appears that on September 16 the Plaintiff met with Dr. Flueckiger for a psychiatric evaluation after the Plaintiff presented himself to the St. Josephs Medical Group. After a one-hour evaluation, Dr. Flueckiger stated that he could recommend that the Plaintiff be permitted to sit for the Indiana bar examination. Defendants Harrell and Sudrovech continued to direct the Plaintiff to see a JLAP certified psychiatrist in order to avoid dismissal of his application. On October 13, Dr. Flueckiger evaluated the Plaintiff for another hour and deemed that he passed under Rule 12 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys (Admission and Discipline

App. 26 Rules). Dr. Flueckiger compiled a report on May 1, 2009, which reflects his analysis under Rule 12. The Plaintiff had requested that someone from the JLAP pre-brief Dr. Flueckiger before he re-evaluated the Plaintiff. Dr. Flueckiger was not pre-briefed. In an effort to comply with JLAP requirements, the Plaintiff scheduled an evaluation with one of the two program-certified psychiatrists in Indianapolis, Defendant Bowman. The Plaintiff met with Defendant Bowman for testing over a period of time during his application process. Part of Defendant Bowmans evaluation involved the Plaintiff visiting Dr. William Alexy, who conducted a psychological examination during an interview. Dr. Alexys final report concluded that he could see the Plaintiff functioning adequately as a practicing attorney. On December 24, 2008, Defendant Bowman issued a report in which she did not reach a conclusion on the Plaintiff s fitness under Rule 12, but concluded that the Plaintiff suffered from a personality disorder, not otherwise specified. After receiving Defendant Bowmans report, Defendant Sudrovech prepared a report on behalf of the JLAP to assist the BLE in making its final determination on the Plaintiff s candidacy for admission to the Indiana bar. The BLEs final determination was that the Plaintiff s application should be denied and that he would not be admitted to the Indiana bar or be able to seek admission again until 2014. The Plaintiff sought review of this decision by the Indiana Supreme Court. The court issued an order stating that [a]fter careful review of the submissions of the

App. 27 parties, it is the Courts determination that the BLEs decision should stand. Accordingly, Applicants Petition for Review is DENIED. In re Bar Applicant 24128, No. 94S00-0910-BL-446, at 1 (Ind. Nov. 16, 2009). STANDARD OF REVIEW A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. To state a claim under the federal notice pleading standards, all that a complaint must do is set forth a short and plain statement of the grounds for the courts jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for relief sought. Fed. R. Civ. P. 8(a). Factual allegations need only give fair notice of what the . . . claim is and the grounds upon which it rests. EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (other citation omitted). However, complaints must provide more than labels and conclusions, formulaic recitations of the elements of causes of action, and facts that do not raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. Thus, a plaintiff s allegations must show that his entitlement to relief is plausible, rather than merely speculative. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). When ruling on Rule 12(b)(6) motions to dismiss, courts accept as true all well-pleaded allegations, view complaints in the light

App. 28 most favorable to the plaintiffs, and draw all reasonable inferences in their favor. Id. at 1081. The Seventh Circuit has provided the following summary of the lessons to be learned from the Supreme Courts opinions in Twombly and Iqbal: First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff s factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff s claim. Third, in considering the plaintiff s factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). In ruling on Rule 12(b)(6) motions to dismiss, courts generally must confine their inquiry to the factual allegations set forth within the operative complaints. Rosenblum v. Travelbyus.com, 299 F.3d 657, 661 (7th Cir. 2002). When parties seeking dismissal under Rule 12(b)(6) submit documents with their motions to dismiss, courts can either ignore the documents or convert the motion to a motion for summary judgment. Fed. R. Civ. P. 12(d); Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002); Venture Assn Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). In the Seventh Circuit, [d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings, and

App. 29 may be considered on a motion to dismiss, if they are referred to in the plaintiff s complaint and are central to her claim. Venture Assn., 987 F.2d at 431. Documents that fall within this narrow exception must be concededly authentic. Tierney, 304 F.3d at 738. DISCUSSION A. Matters Outside the Pleadings The parties have filed certain exhibits and attachments along with some of their submissions. The Court needs to make an initial determination either to exclude these matters outside the pleadings or to give [a]ll parties . . . a reasonable opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. P. 12(d). These materials include: a copy of the final order of the Indiana Supreme Court on the Plaintiff s application (ECF No. 30-1), which is attached to Defendant Rosss Memorandum in Support of Motion to Dismiss; the docket report in the Supreme Court of the United States reflecting the denial of the Plaintiff s petition for a writ of certiorari (ECF No. 50-1), which is attached to Defendant Bowmans Reply; a copy of the Plaintiff s petition for a writ of certiorari (ECF Nos. 52-1, 52-2, & 52-3), which is attached to Defendant Rosss Reply; and evidentiary materials, which are attached to the Plaintiff s Supplemental Brief [ECF No. 57-1]. [T]here exists a narrow exception to the Rule 12(d) instructions that permits a district court to take

App. 30 judicial notice of matters of public record without converting a Rule 12(b)(6) motion into a motion for summary judgment. Doss v. Clearwater Title Co., 551 F.3d 634, 640 (7th Cir. 2008). This exception has allowed courts to avoid unnecessary proceedings when an undisputed fact in the public record establishes that the plaintiff cannot satisfy the 12(b)(6) standard. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997). Under Rule [sic] Federal Rule of Evidence 201(b), [a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); see also Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1354 (7th Cir. 1995) (stating that [i]n order for a fact to be judicially noticed, indisputability is a prerequisite). The Court finds that the Indiana Supreme Court Order (ECF No. 30-1) falls within this exception, and the Court will take judicial notice of the Order. The Order is not subject to reasonable dispute and has not been disputed by any of the parties and is capable of verification by sources whose accuracy cannot reasonable [sic] be questioned. For the same reasons, the Court will also take judicial notice of the docket report in the United States Supreme Court reflecting a denial of the Plaintiff s petition for a writ of certiorari. However, the Court will exclude all of

App. 31 the other materials outside the pleadings that the parties submitted. The Plaintiff s petition for a writ of certiorari, which Defendant Ross submitted, and all of the Plaintiff s evidentiary submissions constitute matters outside the pleadings, and the Court could not consider them without treating the pending motions under Rule 56. B. Jurisdictional Defenses As to Counts 4-13, all of the Defendants assert that this Court should abstain under the RookerFeldman doctrine. As to Counts 1-3 and 25-26, the Indiana Supreme Court Defendants argue that there is no justiciable case or controversy.2 The Court will address these jurisdictional defenses in that order. 1. Rooker-Feldman Doctrine, Counts 4-13 The Defendants argue that the Rooker-Feldman doctrine bars the Plaintiff s Counts 4-13 and that although the Plaintiff is not seeking a review of the Indiana Supreme Courts determination that he is not
Defendant Bowman also argues that this Court should abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971). The basis for Defendant Bowmans Younger abstention argument was that at the time she filed her brief, the Plaintiff was in the process of petitioning the Supreme Court for a writ of certiorari. After Defendant Bowman filed her brief, the Supreme Court denied the petition for certiorari. Brown v. Ind. Bd. of Law Examiners, 130 S.Ct. 2071 (2010) (mem.). Consequently, Defendant Bowmans Younger abstention argument is moot.
2

App. 32 eligible for admission to the bar, his claims and allegations are so intertwined with that decision that this Court cannot rule on his claims. The Plaintiff responds that his suit is against the executive administrators of the JLAP and other Defendants allegedly involved in a conspiracy to violate his rights, and this Courts review of his case will not run afoul of the Rooker-Feldman doctrine. To address this issue, the Court begins by considering aspects of the bar application process, the involvement of the BLE and the JLAP under Indiana law, and the review of the BLE admission application decisions by the Indiana Supreme Court. The Indiana Constitution confers original and exclusive jurisdiction on the Indiana Supreme Court in matters involving admission to the practice of law and discipline of attorneys in Indiana. Ind. Const. art. VII, 4; Matter of Fletcher, 655 N.E.2d 58, 59 (Ind. 1995) (per curiam); see also Ind. Code 33-24-1-2(b)(1) (The supreme court has exclusive jurisdiction to: . . . admit attorneys to practice law in all courts of the state; . . . under rules and regulations as the supreme court may prescribe.); Ind. Admission and Discipline Rule 3, 1 (The Supreme Court shall have exclusive jurisdiction to admit attorneys to practice in Indiana.). Pursuant to this authority, the Indiana Supreme Court has adopted the Indiana Admission and Discipline Rules. It has also appointed a ten-member Board of Law Examiners, Admis. Disc. R. 9, and assigned it the responsibilities of inquir[ing] into and determin[ing] the character, fitness, and general

App. 33 qualifications to be admitted to practice law as a member of the bar of the Supreme Court of Indiana, Admis. Disc. R. 12, 1. The court has also established a fifteen-member Judges and Lawyers Assistance Committee, which through the JLAP provide[s] assistance to judges, lawyers and law students who suffer from physical or mental disabilities that result from disease, chemical dependency, mental health problems or age that impair their ability to practice and supports other programs designed to increase awareness about the problems of impairment among lawyers and judges. Admis. Disc. R. 31, 2. The purpose of the JLAP is to assist impaired members in recovery, educate the bench and bar, and reduce the potential harm caused by impairment to the individual, the public, the profession, and the legal system. The Supreme Court, the Indiana Commission on Judicial Qualifications, the Disciplinary Commission, the BLE, and the administration of any Indiana law school may refer a judge, lawyer, or law student to the Judges and Lawyers Assistance Committee for assessment or treatment upon such terms as authorized under the JLAP Guidelines. Admis. Disc. R 31, 8(c). JLAC is comprised of the committee members, an executive director, and other personnel approved by the Indiana Supreme Court who are necessary to carry out the committees work. Admis. Disc. R. 31, 1. The executive director is hired by the Chief Justice of the Indiana Supreme Court and has various powers and duties, including administering the committees work,

App. 34 appointing staff, and supervising and directing the work of committee staff and volunteers. Applicants for admission to the Indiana Bar by written examination must be 21 years of age and possess good moral character and fitness to practice law, Admis. Disc. R. 12, 2, and must establish that he or she (A) graduated from an ABA accredited law school; (B) satisfactorily completed the law courses required for graduation; and (C) completed at least two cumulative semester hours of legal ethics or professional responsibility. Admis. Disc. R. 13, 4. After an applicant submits his or her application, the BLE makes one of five findings. Admis. Disc. R. 12, 6. The first two possible findings are either (a) good moral character or (b) applicant failed to sustain his or her burden of showing good moral character. Admis. Disc. R. 12, 6(a), (b). If the BLE has concerns about the applicants moral character based upon evidence of drug, alcohol, psychological or behavioral problems it may make one of three possible findings: (c) conditional admission; (d) withhold the application up to two years to allow an applicant to prove rehabilitation; or (e) extend the application consideration time up to one year. Admis. Disc. R. 12, 6(c), (d), (e). If the BLE finds that an applicant is not eligible for admission or is only eligible on a conditional basis, the Board or the applicant may request a hearing. Admis. Disc. R. 12, 7. If necessary during the application process the BLE may refer an applicant to the JLAP. Admis. Disc. R., Program Guidelines for the Indiana Judges and

App. 35 Lawyers Assistance Program, 1(n)(2). Rule 14, section 2 provides, in part: Any applicant aggrieved by the final action of the State Board of Law Examiners in refusing to recommend to the Supreme Court of Indiana the admission of the applicant to practice law in Indiana for any reason other than the failure to pass any examination as set forth in section (1) may . . . file a petition with the Supreme Court of Indiana requesting review by this Court of such final determination, and setting forth specifically therein the reasons, in fact or law, assigned as error in the Boards determination, . . . and the Court shall enter such order as in its judgment is proper, which shall thereupon become final. After the Indiana Supreme Court issues a final order the only further review an applicant may seek is with the United States Supreme Court. 28 U.S.C. 1257. The Rooker-Feldman doctrine, articulated by the Supreme Court in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), is a jurisdictional rule directing that only the Supreme Court of the United States may review the judgment of a state court in civil litigation. Freedom Mortg. Corp. v. Burnham Mortg., Inc., 569 F.3d 667, 670 (7th Cir. 2009). The doctrine holds that federal district courts lack jurisdiction over lawsuits brought by statecourt losers complaining of injuries caused by statecourt judgments rendered before the district court

App. 36 proceedings commence and inviting district court review and rejection of those judgments. Lance v. Dennis, 546 U.S. 459, 464 (2006) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)); see also Freedom Mortg. Corp., 569 F.3d at 671; Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008). Thus, the doctrine precludes lower federal court jurisdiction over claims seeking review of state court judgments . . . [because] no matter how erroneous or unconstitutional the state court judgment may be, the Supreme Court of the United States is the only federal court that could have jurisdiction to review a state court judgment. Taylor v. Fed. Natl Mortg. Assn, 374 F.3d 529, 532 (7th Cir. 2004) (quoting Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir. 2002)). The Rooker-Feldman doctrine also deprives lower federal courts of jurisdiction if the claims made in federal court are inextricably intertwined with the state court judgment. Feldman, 460 U.S. at 486; Brokaw, 305 F.3d at 664. Although inextricably intertwined is a somewhat metaphysical concept, the key issue is whether the district court is being asked to review the state court decision, and this determination hinges on whether the federal claim alleges that the injury was caused by the state court judgment, or, alternatively, whether the federal claim alleges an independent prior injury that the state court failed to remedy. Taylor, 374 F.3d at 533; see also Edwards v. Ill. Bd. of Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001) (Constitutional claims

App. 37 that are inextricably intertwined with state court judgments of necessity [sic] call upon the district court to review the state court decision and are thus beyond the district courts jurisdiction.) (citing Young v. Murphy, 90 F.3d 1225, 1231 (7th Cir. 1996)). In other words, the Rooker-Feldman doctrine is inapplicable when the alleged injury is distinct from the judgment. Johnson v. Orr, 551 F.3d 564, 568 (7th Cir. 2008). The Seventh Circuit has provided the following explanation of what is meant by inextricably intertwined in the Rooker-Feldman context: It is often difficult to distinguish between situations in which the plaintiff is seeking to set aside a state court judgment and ones in which the claim is independent. To assist in this determination, we ask whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment. If it is the former, then the federal courts lack subject matter jurisdiction, even if the state court judgment was erroneous or unconstitutional. If the injury alleged by the federal plaintiff is distinct from the state court judgment and not inextricably intertwined with it, the RookerFeldman doctrine does not apply. The key phrase in this previous sentence is, of course, inextricably intertwined thus, if the injury alleged in the federal case is intertwined in this fashion, the Rooker-Feldman doctrine does apply. To determine whether the injury is inextricably intertwined, we focus on whether the federal court is being called

App. 38 upon to review the state court decision. Constitutional claims that are inextricably intertwined with state court judgments of necessity call upon the district court to review the state court decision and are thus beyond the district courts jurisdiction. On the other hand, an alleged injury will be independent if the state court was acting in a non-judicial capacity when it injured the plaintiff for example, if the state court was promulgating rules regulating the bar. Edwards, 261 F.3d at 728-29 (citations and quotations omitted). In this case, a key initial question is whether the Plaintiff s claims are inextricably intertwined with the Indiana Supreme Courts determination to deny his petition for review and to allow the BLEs decision to deny his application for admission to stand. The Plaintiff argues that his suit is not seeking to set aside the state court judgment, which would clearly be barred under Rooker-Feldman. See Edwards, 261 F.3d at 729. Rather, the Plaintiff contends that his constitutional claims challenge the way he was processed through a state system and that his suit is against a state agency. (Pl.s Resp. to Defs. Mot. to Dismiss 14, ECF No. 49.) See Gilbert v. Ill. State Bd. of Educ., 591 F.3d 896, 900 (7th Cir. 2010) (stating that because the Rooker-Feldman doctrine is concerned only with state court determinations, it presents no jurisdictional obstacle to judicial review of executive action, including decisions made by state administrative agencies) (citing Verizon Md., Inc. v.

App. 39 Pub. Serv. Commn of Md., 535 U.S. 635, 644 n.3 (2002)). His argument requires that this Court assess whether the actions of the JLAC through the JLAP, during the bar admissions process, were so inextricably intertwined with the ultimate Indiana Supreme Court resolution of the Plaintiff s case such that this Court lacks jurisdiction to hear the Plaintiff s civil rights claims. The Court finds that the Rooker-Feldman doctrine precludes this Court from adjudicating the Plaintiff s civil rights claims because the JLACs actions through the JLAP are inextricably intertwined with the Indiana Supreme Courts adjudication of the Plaintiff s bar application and its judgment in the Plaintiff s case. To the extent that the Plaintiff is seeking to have this Court review the JLACs actions pertaining to its role in assisting the Indiana Supreme Courts regulation of the admission to practice law, this Court does not have jurisdiction. Reviewing the JLACs actions in this context would require the Court to consider the Indiana Supreme Courts process of referring cases to the JLAC, reviewing how the JLACs information is utilized by the BLE, and finally reviewing the Indiana Supreme Courts ultimate resolution in the case of an individual seeking admission to the bar. The Plaintiff has attempted to plead his case so that it is only against the JLAC and does not implicate the Indiana Supreme Courts adjudication In the Matter of Applicant No. 24128. However, a challenge to the JLAC in this context cannot be separated out so distinctly as to

App. 40 allow for this Courts review. The Admission and Discipline rules provide a process that culminates with the Indiana Supreme Courts review of an aggrieved bar applicants application and any factual or legal errors with the BLEs determination. Admis. Disc. R. 14, 2. Consistent with the rules, the Indiana Supreme Courts Order on the Plaintiff s petition for review states: After careful review of the submissions of the parties, it is the Courts determinations that the BLEs decision should stand. Accordingly, Applicants Petition for Review is DENIED. (ECF No. 30-1.) The Court finds that the Plaintiff s civil rights challenges to the JLACs actions are so inextricably intertwined with the Indiana Supreme Courts final order in the Plaintiff s case that a review of the JLACs actions would constitute a review of the state supreme courts final order, which is impermissible under the Rooker-Feldman doctrine. The Plaintiff argues that the Supreme Courts clarification of the Rooker-Feldman doctrine in Exxon Mobil Corp., 544 U.S. at 184, establishes that the doctrine should not apply to this case. The Court in Exxon Mobil Corp. stated: The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: 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.

App. 41 Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions. Id.; see also Skinner v. Switzer, 562 U.S. ___, ___, No. 09-9000, slip op. at 9 (Mar. 7, 2011) (reaffirming the Rooker-Feldman doctrines narrow application as explained in Exxon).3 The Plaintiff argues: (1) that he is not a state-court loser because he did not lose in a state court case against these Defendants; (2) that he is not complaining of injuries caused by the Indiana Supreme Court; and (3) that he is not asking this Court to review or reject the Indiana Supreme Courts final order. The Plaintiff is correct that he is not asking the Court directly to review the Indiana Supreme Courts order. However, the Court cannot allow artful pleading or argument to obscure what the practical effect of any potential judgment would be a review and modification of the Indiana Supreme Courts final order. The Plaintiff also notes the Supreme Courts citation to GASH Associates v. Village of Rosemont, Ill., 995 F.2d 726, 728 (7th Cir. 1993), for the proposition that [i]f a federal plaintiff
The Court is aware that Exxon and Skinner provide guidance on the limited application of the Rooker-Feldman doctrine. However, given the similarities between this case and Feldman the Plaintiff s challenge to the state bar admission process some of the Plaintiff s claims fit into the narrow Rooker-Feldman doctrine, even as clarified by Exxon and Skinner.
3

App. 42 present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party . . . , then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion. Exxon Mobil Corp., 544 U.S. at 293. The Supreme Court in GASH Associates was drawing the line between a case that lies outside federal jurisdiction and a case within federal jurisdiction in which a federal court may review a claim, but ultimately determines that a plaintiff is precluded under the prevailing state courts res judicata principles. This Courts conclusion is based on the inextricably intertwined rationale first established in Feldman and further explained by the Seventh Circuit in Edwards, which was not altered in Exxon Mobil Corp. Thus, the Plaintiff is incorrect that his claim is not inextricably intertwined with the Indiana Supreme Courts judgment. The Plaintiff also relies on Washington v. Wilmore, 407 F.3d 274 (4th Cir. 2005), in arguing that his claims are not inextricably intertwined with the Indiana Supreme Courts judgment. His argument rests on the courts distinction between challenging a state court conviction and challenging one aspect of the means by which that conviction was achieved. Id. at 280. The plaintiff s challenge in Washington was whether one of the police officers who testified against him at trial had fabricated evidence. Id. at 275. The Fourth Circuit concluded:

App. 43 there is simply no mechanism by which [the plaintiff ] could have obtained from the state court a resolution of the question of [the defendants] truthfulness regarding [the plaintiff s independent knowledge about a key fact at trial]. A criminal jury decides the question of a defendants guilt or innocence; it does not make particularized findings regarding the credibility of individual witnesses generally or with respect to a specific item of testimony. Id. at 280-81. The Washington case and this case are distinguishable because the plaintiff s claim in Washington was collateral to the state court proceeding, but the Plaintiff s claim in this case is a direct challenge to the state court proceeding. When the Indiana Supreme Court finally adjudicates an individuals application for admission to the bar, it is exercising its original, exclusive jurisdiction and ruling on all aspects of bar admission, including the process by which an individual comes before the court. Ind. Const. art. VII, 4; Admis. Disc. R. 14, 2. In seeking Indiana Supreme Court review of the BLEs decision to deny his application under Admission and Discipline Rule 14, 2, the Plaintiff was permitted to set forth the reasons, in fact or law, assigned as error in the Boards determination, which would have included the alleged conspiracy to deny his application. The Washington plaintiff could not get relief for the constitutional deprivation of fabricated evidence because the alleged constitutional deprivation was not an issue before the criminal jury

App. 44 or trial court. In this case, the Plaintiff sought relief from the Indiana Supreme Court from all errors in fact or law in his bar application process and was denied. The Plaintiff expresses frustration regarding the brevity with which the Indiana Supreme Court handled his case, but the Indiana Supreme Courts brief resolution was still an adjudication of his case.4 The Plaintiff raises claims that are intertwined with, and were directly resolved by, the Indiana Supreme Court. The Courts Rooker-Feldman analysis here does not apply to all of the Plaintiff s claims. The Supreme Court has instructed that a state-court decision is not reviewable by lower federal courts, but a statute
The Plaintiff also highlights that the Indiana Supreme Courts order does not mention any of the named Defendants in this case. This argument pertains more to the potential preclusive effect of the Indiana Supreme Courts Order, which Defendant Ross raised in his defense. The Seventh Circuit has noted that courts struggle with the distinction between a RookerFeldman problem and a res judicata problem. Hale v. Comm. on Character and Fitness for State of Ill., 335 F.3d 678, 682 (7th Cir. 2003). Furthermore, while courts may permit preclusion doctrines to be raised and determined on a Rule 12(b)(6) motion when the grounds for preclusion appear on the face of the complaint or involve matters of which a court can take judicial notice, establishing such defenses often requires consideration of matters outside the complaint, and thus summary judgment is often a better tool. See, e.g., D & K Props. Crystal Lake v. Mut. Life Ins. Co. of N. Y., 112 F.3d 257, 259 & n. 1 (7th Cir. 1997). Given that the Court finds it lacks jurisdiction based on the Rooker-Feldman doctrine to adjudicate Counts 4-13, it will not reach the claim preclusion issue raised by the parties.
4

App. 45 or rule governing the decision may be challenged in a federal action. Skinner, slip op. at 10 (citing Feldman, 460 U.S. at 487, and Exxon, 544 U.S. at 286). The only claims the Court finds barred by RookerFeldman are his constitutional law claims under 1983, which are inextricably intertwined with the Indiana Supreme Courts Order and upon which any relief would require this Court to review and confirm 5 or reject the Indiana Supreme Courts judgment. For these reasons, the Court finds that it lacks jurisdiction, pursuant to the Rooker-Feldman doctrine, to adjudicate the Plaintiff s constitutional law claims challenging the review of and the determination on his state bar application, and will dismiss Counts 413. 2. Case or Controversy, Counts 1-3 and 25-26 The Indiana Supreme Court Defendants argue that there is no case or controversy because the Plaintiff in Counts 1-3 and 25-26 is seeking a declaration of rights under the Indiana Admission and Discipline Rules, which is not a legal claim. The Plaintiff responds that he has standing to bring this case. In his Complaint, the Plaintiff premises his claims on two changes to the Indiana Admission and Discipline Rules. On September 15, 2009, the Indiana Supreme Court issued an Order that amended Rule 19 and Rule 23, effective on January 1, 2010. The
5

These claims include Plaintiff s numbered Counts 4-13.

App. 46 Indiana Supreme Court amended Rule 19, 3 to allow disclosure of other information relating to a bar application, an applicant, and the result of the bar application for placement in a national data bank operated by or on behalf of the National Conference of Bar Examiners. Prior to the rule amendment only an applicants name, date of birth, social security number, and date of application were authorized to be disclosed to the national data bank. Rule 19, 2 also includes a provision that [a]ll materials and information in the possession or knowledge of the Board of Law Examiners, its Executive Director, or its agents or employees, shall be the property of the Supreme Court of Indiana, which was not part of the 2009 amendments. The Plaintiff s challenge is based in part on his concern that the Indiana Supreme Court reserves the right to punish [the] Plaintiff for publicizing or speaking of [the bar application process]. (ECF No. 1 at 30.) The Indiana Supreme Court amended Rule 23, 20 to provide absolute immunity for all oral or written statements made to the disciplinary commission or the JLAP in the course of review proceedings under the rules. The brief of the Indiana Supreme Court Defendants does not expressly present their challenge as a ripeness challenge, but in arguing that the Plaintiff is seeking a declaration of rights regarding the Indiana Rules on Admission and Discipline (ECF No. 28 at 6), it appears that ripeness is one of their principal concerns. The Plaintiff is not claiming that there are any proceedings against him for violating the Indiana

App. 47 Admission and Discipline Rules. Instead, he is seeking a declaration that Rules 19 and 23 are unconstitutional. The Plaintiff addresses ripeness in his Reply and relies on Steffel v. Thompson, 415 U.S. 452 (1974), to argue that his case is ripe because he is trapped between having to violate the Indiana Admission and Discipline Rules and risk administrative proceedings in Indiana and Kansas6 or forego what he believes to be constitutionally protected activity. Id. at 462. Article III, section 2 of the United States Constitution states in part: [t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Article III limits federal courts to adjudicating actual cases or controversies, and there are three requirements for Article III case-or-controversy standing: (1) an injury in fact; (2) that is fairly traceable to the
6

The Plaintiff is admitted to the bar of the State of Kansas.

App. 48 defendants action; and (3) that is capable of being redressed by a favorable decision from the court. Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir. 2010). The alleged injury must be both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Id. In order for a case to be justiciable in federal court, there must be an actual controversy over an issue, not a desire for an abstract declaration of the law. In re Summers, 325 U.S. 561, 567 (1945) (citing Muskrat v. United States, 219 U.S. 346, 361 (1911); Fairchild v. Hughes, 258 U.S. 126, 129 (1922)). If a dispute between parties is not a case or controversy, then a federal court lacks power under Article III to resolve the dispute. Bond v. Ulteras, 585 F.3d 1061, 1070 (7th Cir. 2009) (quoting DiamlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Cases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts. Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992). The ripeness doctrine stems from Article III limitations as well as prudential concerns. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n.18 (1993). The Article III limitation is that a federal court may only consider a case that has such a form that the judicial power is capable of acting on it. In re Summers, 325 U.S. at 567 (quoting Osborn v. Bank, 9 Wheat. 738, 22 U.S. 738, 819 (1824)). Further, the ripeness doctrine deals with the time, if any, at which a party may seek pre-enforcement review of a statute or

App. 49 regulation. Triple G. Landfills, Inc. v. Bd. of Commrs of Fountain County, 977 F.2d 287, 288-89 (7th Cir. 1992). The prudential concern underlying ripeness is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). The Supreme Court has announced two factors that determine whether an issue is ripe for judicial consideration. First, the issue on which review is sought must be fit for judicial decision. Second, courts must take into account any hardship to the parties of withholding court consideration. Lehn v. Holmes, 364 F.3d 862, 867 (7th Cir. 2004) (internal quotations and citations omitted). An issue is not fit for judicial decision when it pertains to contingent future events that may not occur as anticipated, or indeed may not occur at all. Evers v. Astrue, 536 F.3d 651, 662 (7th Cir. 2008) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). For the second factor, a plaintiff may demonstrate hardship by establishing that (1) enforcement is certain, only delayed; or (2) even though enforcement is not certain, the mere threat of future enforcement has a present concrete effect on [the Plaintiff s speech] and irremediably adverse consequences would flow from a later challenge. Metro. Milwaukee Assn of Commerce v. Milwaukee Cnty., 325 F.3d 879, 882 (7th Cir. 2003) (citations omitted). There is a ripeness problem with the Plaintiff s challenges to Rules 19 and 23 as contained in his

App. 50 Counts 1-3 and 25-26 because any potential consequence the Plaintiff may face from violating the challenged rules is too remote. The procedures governing the discipline of attorneys for violating the Admission and Discipline Rules are set forth in Rule 23. Rule 23 only applies to attorneys admitted to practice law in Indiana. Admis. Disc. R. 23, 1. The Plaintiff is not admitted to practice law in Indiana, and it is not clear what enforcement action could result based on the Plaintiff publishing an account of his Indiana bar application process. The Court is not determining that the Plaintiff would not face consequences from violating the challenged rules, only that any potential consequence appears to be too remote to be discernable at this time. Therefore, the Plaintiff s challenges to Rules 19 and 23 are not ripe, and the Court will grant the Indiana Defendants Motion as to Counts 1-3 and 25-26. C. Immunity Defenses In addition to the Rooker-Feldman doctrine, the parties have discussed various immunity defenses, and the Court will address these as additional grounds for dismissal. The Indiana Supreme Court Defendants claim Eleventh Amendment immunity, and Defendants Bowman and Ross raise witness immunity.7
7

Other immunities the Defendants raise include judicial immunity or a derivative of judicial immunity, and immunities (Continued on following page)

App. 51

conferred by the Admission and Discipline Rules. Because the Court finds that the Indiana Supreme Court Defendants are immune under the Eleventh Amendment and that Defendants Bowman and Ross are immune as witnesses, it will not reach these additional immunity claims, except for Defendant Shepards judicial immunity because the Plaintiff conceded this issue. Defendant Shepard argues that he is entitled to absolute judicial immunity from all of the Plaintiff s claims under both Indiana and federal law. The Plaintiff concedes this point in his Supplemental Briefing. (ECF No. 57 at 4 (stating that [t]he Chief Judge of the Indiana Supreme Court enjoys absolute immunity from suit given the claims presented in Plaintiff s Complaint).) Judges are immune from suits brought on the basis of their judicial acts. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). [T]he immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judges judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (citations omitted). Allegations of conspiracies with non-immune individuals do not pierce a judges absolute immunity. Pena v. Mattox, 84 F.3d 894, 897 (7th Cir. 1996). The Complaint alleges that Defendant Shepard is liable based upon his judicial acts, and the Plaintiff has conceded that Defendant Shepard is entitled to absolute immunity from suit. Consequently, the Court finds that in addition to Eleventh Amended [sic] immunity, Defendant Shepard is protected by judicial immunity. Defendants Harrell and Sudrovech argue that they are entitled to quasi-judicial immunity because their actions were undertaken pursuant to directives of a judicial officer. The Court does not need to determine this immunity issue in light of its finding that Defendants Harrell and Sudrovech are immune under the Eleventh Amendment. All of the Defendants other than Defendant Shepard argue that Admission and Discipline Rule 31, 10 provides immunity. At this stage of the proceeding and considering the Courts determination later in this Opinion not to exercise supplemental (Continued on following page)

App. 52 1. Eleventh Amendment Immunity and the Indiana Supreme Court Defendants The Indiana Supreme Court Defendants argue that the Eleventh Amendment bars suits in federal court against state officials sued in their official capacity and that some of the Plaintiff s claims are against them in their official capacities.8 The Plaintiff responds that he is not seeking any monetary damages and did not name state agencies as Defendants and therefore that the Eleventh Amendment does not bar his claims. Eleventh Amendment immunity precludes a citizen from suing a state or a state agency, including state officials in their official capacities, in federal court without the states consent or congressional abrogation. See Peirick v. Indiana Univ.-Purdue Univ. Indianapolis Athletic Dept, 510 F.3d 681, 695 (7th Cir. 2007); Joseph v. Bd. of Regents of Univ. of Wis.
jurisdiction over the Plaintiff s state-law claims, the Court will not reach this immunity issue. The Indiana Supreme Court Defendants also raise immunity under the Indiana Tort Claims Act, but for the same reasons, the Court will not reach that issue. 8 In addition to the Indiana Supreme Court Defendants, Defendant Bowman asserts that, to the extent that this Court would find that she acted as a state official, she too would be immune from suit when sued in her official capacity. At this stage in the litigation, the Court does not need to rule on whether Defendant Bowman was acting as a state official because she is immune from suit as a witness and the Court has already held it will not reach the claims on which this issue may be dispositive.

App. 53 Sys., 432 F.3d 746, 748 (7th Cir. 2005) ([S]tate officials in their official capacities are . . . immune from suit under the Eleventh Amendment.). A suit against a state may be brought in federal court only when (1) a state official is sued for prospective equitable relief under Ex Parte Young, 209 U.S. 123, 15960 (1908); (2) Congress abrogates the States immunity pursuant to its powers under section 5 of the Fourteenth Amendment; or (3) the State consents and waives its immunity. Nelson v. Miller, 570 F.3d 868, 883 (7th Cir. 2009). Indiana has not elected to waive its Eleventh Amendment immunity, Meadows v. State of Ind., 854 F.2d 1068, 1069 (7th Cir. 1988), and 1983 does not disturb this immunity, Will v. Mich. Dept of State Police, 491 U.S. 58, 63 (1989). The Court finds that the Indiana Supreme Court Defendants are entitled to Eleventh Amendment immunity.9 The Plaintiff argues that when a complaint fails to specify whether the suit is against the state officer in his official or personal capacity, the Court should infer the character of the action from
The Indiana Supreme Court Defendants also argue that they are not persons subject to suit under 42 U.S.C. 1983. Officials sued in their official capacities are not persons under 1983 because a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the officials office. . . . As such, it is no different from a suit against the State itself. Will, 491 U.S. at 63, 71 (citations omitted). Consequently, the Indiana Supreme Court Defendants in their official capacities are not suable [sic] persons under 1983.
9

App. 54 the course of the proceedings. However, the Seventh Circuit has a different rule in 1983 cases. Stevens v. Umsted, 921 F. Supp. 530 (C.D. Ill. 1996), aff d, 131 F.3d 697 (7th Cir. 1997)); see also Lewis v. Downey, 581 F.3d 467, 472-73 (7th Cir. 2009) (discussing 1983 liability in suits against defendants in their individual capacities); Guzman v. Sheahan, 495 F.3d 852, 860 (7th Cir. 2007) ([A] complaint that does not make clear that it is brought in an individual capacity will be construed as having been brought only in an official capacity.) (citing Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990) (In the absence of any express statement that the parties are being sued in their individual capacities, an allegation that the defendants were acting under color of law generally is construed as a suit against the defendants in their official capacities only.)). The Plaintiff s Complaint alleges claims against the Indiana Supreme Court Defendants in their official capacities and asserts that they were acting under color of law. Even if there is some ambiguity as to whether the Plaintiff is suing the Indiana Supreme Court Defendants in their official capacities, the Seventh Circuit case law directs the Court to construe the Plaintiff s claims as against the Indiana Supreme Court Defendants in their official capacities. Because Congress did not abrogate Eleventh Amendment immunity in enacting 1983 and because Indiana has not waived its immunity, the Plaintiff s Counts 4-13 and 21-24 could only go forward against state officials for prospective relief

App. 55 under Ex Parte Young. It appears the Plaintiff is also seeking prospective relief,10 and to the extent the Plaintiff is seeking prospective relief the Indiana Supreme Court Defendants are not immune from suit under the Eleventh Amendment. See Ind. Protection & Advocacy Servs. Grp. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370-74 (7th Cir. 2010) (discussing Eleventh Amendment immunity and Ex Parte Young, noting under Ex Parte Young, a plaintiff may file suit against state officials seeking prospective equitable relief for ongoing violations of federal law) (citing Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997)). The lack of immunity from prospective relief does not revive any of the Plaintiff s claims the Court will dismiss pursuant to the Rooker-Feldman doctrine. 2. Witness Immunity and Defendants Bowman and Ross Defendants Bowman and Ross argue that they are entitled to absolute judicial immunity because they served as witnesses in a quasi-judicial proceeding. The Plaintiff argues that Defendants Bowman and Ross are not entitled to immunity because they did not provide sworn testimony and because they were not acting under direction from judicial or
In his prayer for relief in Counts 4-13 the Plaintiff prays for an order in equity that all Defendants receive advance training in the First Amendment and the limitations on state action. (ECF No. 1 at 32-35.)
10

App. 56 quasi-judicial officers. Defendant Bowmans and Rosss Reply Memoranda argue that they did not have to be under oath to receive absolute immunity under Indiana law. Court-appointed expert witnesses are entitled to absolute immunity from liability for damages when they act at a courts direction. Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009). From the allegations in the Complaint, it appears that the Indiana Supreme Court, through the BLE and the JLAC, asked Defendants Bowman and Ross to evaluate and provide reports regarding the Plaintiff s character and fitness for purposes of admission to the Indiana bar. Defendants Bowman and Ross then met with the Plaintiff at the JLACs direction and reported to the JLAC as part of the bar admission process.11 Thus, the involvement of Defendants Bowman and Ross in this case was as expert witnesses acting at the Indiana Supreme Courts direction. As to the Plaintiff s argument that Defendants Bowman and Ross never gave sworn testimony and were therefore never witnesses, the Court notes that the Seventh Circuits analysis in Cooney does not require that an expert witness provide a sworn statement in order to be
11

In his Supplemental Briefing, the Plaintiff asserts that Dr. Ross initially indicated that he completed the psychological evaluation independent of the state. (ECF No. 57 at 22 n.6.) The Plaintiff has taken Defendant Rosss statement out of context. Dr. Rosss statement was included in an alternative argument and provides no basis for setting aside his immunity.

App. 57 entitled to immunity. Id. at 969-70 (discussing the experts preparation of a report and noting that the appointed expert in the case could not be called as a witness under Illinois law).12 The Court finds that Defendants Bowman and Ross are entitled to absolute immunity from the Plaintiff s claims against their actions taken at the Indiana Supreme Courts direction. D. John Does and Jane Roes In addition to the named Defendants, the Plaintiff lists as parties [t]he unnamed Defendants John Doe and Jane Roe [as] co-conspirators with the named Defendants whose actions, identities[,] and relationship with governmental entities are not fully known at this time. (ECF No. 1 at 3.) However, the Plaintiff may not pursue claims against Doe Defendants until he has identified them because [i]t is pointless to include lists of anonymous defendants in federal court; this type of placeholder does not open
In their submissions, the parties discussed Kim v. Parker, 373 Fed. Appx. 606, 607-08 (7th Cir. 2010), in which the Seventh Circuit upheld the immunity of a court-appointed psychiatrist without any indication that the psychiatrist provided sworn testimony and cited Seventh Circuit precedent including Cooney, which this Court is relying on here. The Seventh Circuits order in Kim v. Parker is an unsigned not for publication order under Federal Rule of Appellate Procedure 32.1, and under Circuit Rule of the United States Court of Appeals for the Seventh Circuit 32.1, the courts order in that case is not treated as precedent.
12

App. 58 the door to relation back under Fed. R. Civ. P. 15, nor can it otherwise help the plaintiff. Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997). Thus, the Court will also dismiss the Plaintiff s claims as to Defendants John Does and Jane Roes. E. Remaining Claims and Defenses, Counts 14-24 In addition to the federal claims, the Plaintiff has asserted claims under state law. The basis for the Courts subject-matter jurisdiction to review these claims is supplemental jurisdiction under 28 U.S.C. 1367(a) (extending federal district court jurisdiction to all claims that are so related to a claim within the courts original jurisdiction that they form part of the same case or controversy within the meaning of Article III of the Constitution). Section 1367(a) authorizes federal courts to exercise supplemental jurisdiction over state-law claims, but district courts have discretion to decline to exercise jurisdiction over supplemental state-law claims for several reasons that are enumerated in 1367(c). Subsection (c)(3) states that a court may decline to exercise supplemental jurisdiction when the court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. 1367(c)(3). [T]he general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits. Wright v. Assoc. Ins. Cos., 29 F.3d 1244, 1251 (7th Cir. 1994). The Seventh Circuit has

App. 59 identified three situations where a court should retain jurisdiction over supplemental claims even though the federal claims have dropped out: (1) where the statute of limitations would bar the refiling of the supplemental claims in state court; (2) where substantial federal judicial resources have already been expended on the resolution of the supplemental claims; and (3) where it is obvious how the claims should be decided. Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 906-07 (7th Cir. 2007) (citing Wright, 29 F.3d at 1251-52). The Court is dismissing all claims over which it has original jurisdiction, and this case is at the pleading stage. Additionally, there does not appear to be any bar to the Plaintiff s ability to bring his state-law claims in state court. Consequently, the Court will exercise its discretion and decline to exercise supplemental jurisdiction over the Plaintiff s state-law claims. Thus, the Court will dismiss all of the Plaintiff s remaining Counts 14-24. F. Possible Amendment to Pleading Because the Court will dismiss the Plaintiff s claims, the Court considers here whether to give the Plaintiff leave to file a motion to amend his Complaint. The Seventh Circuit has instructed: One objective of Rule 8 is to decide cases fairly on their merits, not to debate finer points of pleading where opponents have fair notice of the claim or defense. See Fed. R. Civ. P.

App. 60 8(e) (Pleadings must be construed so as to do justice.). Generally, if a district court dismisses for failure to state a claim, the court should give the party one opportunity to try to cure the problem, even if the court is skeptical about the prospects for success. Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (citing Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008)). Rule 15 dictates that leave to amend a pleading shall be freely given when justice so re13 quires. Foster, 545 F.3d at 583-584. In this case, the Court is dismissing all of the Plaintiff s claims on jurisdictional grounds, not for failure to state a claim. However, in light of the prevailing standards under Rules 8 and 15, the Court will allow the Plaintiff to file a motion for leave to file an amended complaint if

The Foster court adds: For purposes of Rule 15(a), a motion to dismiss does not constitute a responsive pleading; thus, an order dismissing the original complaint normally does not eliminate the plaintiff s right to amend once as a matter of right. Foster, 545 F.3d at 584 (quoting Crestview Vill. Apartments v. United States HUD, 383 F.3d 552, 557 (7th Cir. 2004); Willhelm v. E. Airlines, Inc., 927 F.2d 971, 972 (7th Cir. 1991)). On December 1, 2009, an amendment to Rule 15 went into effect that altered the language of Rule 15(a) to read in part as follows: if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f ), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B) (emphasis added). The Plaintiff filed his Complaint on December 8, 2009, and did not amend his Complaint within 21 days of service after the Defendants filed their Motions to Dismiss. The Plaintiff no longer has a right to amend once as a matter of right.

13

App. 61 he chooses to do so. See Barry Aviation, Inc. v. Land OLakes Mun. Airport Commn, 377 F.3d 682, 687 (7th Cir. 2004) (The better practice is to allow at least one amendment regardless of how unpromising the initial pleading appears because except in unusual circumstances it is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim.) (quotation marks and citation omitted). Under the Federal Rules of Civil Procedure, a district court may deny a motion to amend if the proposed amendment fails to cure the deficiencies in the original pleading, or could not survive a second motion to dismiss. Foster, 545 F.3d at 584 (quoting Crestview Vill. Apartments v. United States HUD, 383 F.3d 552, 558 (7th Cir. 2004)). The Defendants will have an opportunity to respond to any motion filed by the Plaintiff seeking leave to amend his pleading. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants Shepard, Harrell, and Sudrovechs Motion to Dismiss [ECF No. 27], Defendant Rosss Motion to Dismiss [ECF No. 29], and Defendant Bowmans Motion to Dismiss [ECF No. 42]. The Court DISMISSES the Plaintiff s Complaint [ECF No. 1] WITHOUT PREJUDICE to his ability to seek to amend his Complaint and make the necessary and appropriate allegations if he, consistent with Federal Rule of Civil Procedure 11, believes the facts support them. If the Plaintiff wishes to seek leave to file an

App. 62 amended complaint, he must file the appropriate motion along with his proposed amended complaint on or before April 14, 2011. If no such motion is filed by that date, the Court will dismiss this case. SO ORDERED on March 31, 2011. s/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT

App. 63 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 March 2, 2012 Before RICHARD D. CUDAHY, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge BRYAN J. BROWN, Plaintiff-Appellant, ) Appeal from the United ) States District Court ) for the Northern No. 11-2164 ) District of Indiana, v. Fort Wayne Division. ) ELIZABETH BOWMAN, ) No. 1:09-cv-346 TLS et al. ) Defendants-Appellees. ) Theresa L. Springmann, Judge. ORDER On consideration of the Plaintiff-Appellants Petition for Rehearing and Suggestion for Rehearing En Banc filed on February 16, 2012, in the abovecaptioned case, all of the judges on the panel have voted to deny rehearing, and no active judge on the court has requested rehearing en banc. Therefore, the petition is DENIED.

App. 64 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION BRYAN J. BROWN, Plaintiff, v. DR. ELIZABETH BOWMAN, TERRY HARRELL, individually and in her official capacity as Executive Director of the Judges and Lawyers Assistance Program, TIM SUDROVECH, individually, and in his official capacity as Clinical Director of the Judges and Lawyers Assistance Program, DR. STEVEN ROSS, JOHN DOES and JANE ROES, co-conspirators, And RANDALL SHEPARD, in his official capacity as Chief Justice of the Indiana Supreme Court, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.

1. This is a civil rights action brought pursuant to 42 U.S.C. 1983 challenging Defendants acts committed under color of state law. Defendants are herein alleged to have deprived Plaintiff of his civil and constitutional rights provided under the United States

App. 65 and Indiana Constitutions and are also alleged to have visited damages that sound in state tort and contract law. 2. Plaintiff seeks (a) a declaration that Rule 19, Admission and Discipline, is visiting an unconstitutional prior restraint upon Plaintiff, and (b) equitable relief recalling government reports built upon unconstitutional and tortuous acts and practices and quarantining all reports arising from said unconstitutional and fraudulently obtained reports, (c) nominal, compensatory and exemplary damages, and (d) an injunction prohibiting Defendants from engaging in unconstitutional enforcement of the challenged provisions in the future, from promulgating reports predicated upon unconstitutional acts and fraud and directing Defendants to develop and implement training and protocols which comport with constitutional requirements and protect the constitutional rights of Plaintiffs and others similarly situated. 3. This Court has jurisdiction of this cause pursuant to 28 U.S.C. 1331 and 1343. 4. The Court has supplemental jurisdiction over the state law based claims pursuant to 28 U.S.C. 1367. 5. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 because Defendant Dr. Steven Ross maintains an office and residence in Allen County, where the challenged testing, confiscation of work product and billing fraud alleged herein took place.

App. 66 6. Declaratory relief is authorized by 28 U.S.C. 2201, 2202 and by Rule 57 of the Federal Rules of Civil Procedure. 7. The Attorney General of the State of Indiana has been served pursuant to since this litigation seeks a declaration of law again [sic] a law of the State of Indiana. 8. Jury trial is sought on claims in which that is applicable. 9. Plaintiff seeks damages from the health care providers named herein in an amount not greater than fifteen thousand dollars each ($15,000). PARTIES 10. Plaintiff Bryan J. Brown is a permanent resident of Allen County, Indiana who is admitted to the bar of the State of Kansas (1996). He is filing this action pro se. 11. The Chief Justice of the Indiana Supreme Court, Randall T. Shepard, is sued in his official capacity as the representative of that Honorable Court. 12. The Executive Director of the Judges and Lawyers Assistance Program, Terry Harrell, is sued in her official capacity for the policies and procedures of JLAP and acts undertaken within the scope of her employment and in her individual capacity for acts taken that are not within the scope of her

App. 67 employment or that fall outside the grant of good faith immunity. 13. The Clinical Director of the Judges and Lawyers Assistance Program, Tim Sudrovech, is sued in his official capacity for the policies and procedures of JLAP and acts undertaken within the scope of his employment and in his individual capacity for acts taken that are not within the scope of her employment or that fall outside the grant of good faith immunity. 14. Dr. Elizabeth Bowman is sued for her alleged private torts, unconscionable contracting and alleged collusions with government actors, the latter being the conduit to alleged liability under 42 USC 1983. 15. Dr. Steven Ross is sued for his alleged private torts and alleged collusions with government actors, the latter being the conduit to alleged liability under 42 USC 1983. 16. The unnamed Defendants John Doe and Jane Roe are co-conspirators with the named Defendants whose actions, identities and relationship with governmental entities are not fully known at this time. INTRODUCTION OF CAUSES OF ACTION 17. This litigation, at core, alleges a conspiracy to discriminate against Plaintiff in the Judges and Lawyers Assistance Program that culminated in the filing of fraudulent reports obtained through unconstitutional means with the Board of Law Examiners

App. 68 that influenced said governmental body to Plaintiff s detriment. 18. The Indiana Supreme Court created JLAP. Admission and Discipline Rule 31, Section 2. The Board of Law Examines [sic] has authority to refer persons to JLAP for assessment or treatment. Admission and Discipline Rule 31, Section 8(c). 19. JLAP and the Board are distinct entities that do not share offices, mission statements, personnel or immunities. 20. The currently named Defendants (other than the Chief Judge) are alleged to have been purposely and knowingly involved in acts taken under the color of law and through close affiliation with JLAP, along with other Doe Defendants (who may or may not be affiliated with JLAP) in which an end goal was commonly pursued because of, and not merely in spite of, its adverse effects upon Plaintiff s free speech, free exercise, due process and/or equal protection rights under the federal and state constitutions as well as general statutory and common law protections afforded Plaintiff. 21. 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 Court. This court simply lacks the subject matter jurisdiction to relieve the instant Plaintiff of the order that he not be admitted

App. 69 to the Indiana bar and not even seek admission again until 2014. 22. 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 handpicked providers with whom they collaborate. As such this case has applicability far beyond bar admission issues. 23. 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 Plaintiff s admission to its bar. If the claims brought herein are not heard by this Honorable Court, the claims brought herein are unlikely to be heard in any court of law. 24. 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. 25. 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.

App. 70 26. What this Honorable Court is asked to consider in this litigation is whether JLAP, by charter, is involved in processing judges and attorneys through mental health assessments and treatments in difficult personal situations without due regard for the constitutional norms that define the American legal order. 27. This suit brings to the bar the actions of some of the small cadre of hand-picked experts that JLAP assigns to work its cases. While JLAP may not be paying the monies directly to such mental health professionals, JLAP clearly mandates, as demonstrated infra, that such hand picked experts and only such hand picked experts will be the ones reviewing JLAPs assignees. JLAP furthermore dictates the significant terms of the sessions they supervise through mandatory pre-briefings that go so far as to dictate what terms and findings are not to appear in final reports. (And, by extrapolation, what terms and finding are to appear in the final reports.) 28. The allegations contained herein cut a window into a process that (thanks to public shame and confidentiality rules) is seldom open to review by the public. Plaintiff brings this action for the good of his profession and all of those who will follow him into the JLAP system because Plaintiff: (1) has suffered much through the processing described herein; (2) believes, with Justice Louis D. Brandeis. that Sunshine is the greatest disinfectant; (3) is a twelve year licensed attorney fully dedicated the following: As a public citizen a lawyer should seek the improvement

App. 71 of the law, access to the legal system, the administration of justice and the quality of the service rendered by the legal system. Rules of Professional Conduct, Preamble; and finally, (4) perceive a duty to bring this litigation since he is under a responsibility to assure that the regulations are conceived in the public interest and not in furtherance of parochial or selfinterested concerns of the bar. Id. ALLEGATIONS OF FACT SUPPORTING LEGAL CLAIMS 29. The Board of Law Examiners (BLE) ordered Plaintiff to report to Tim Sudrovech of the Judges and Lawyers Assistance Program at the conclusion of Plaintiff s first hearing before the Board on January 25, 2008. 30. That order effectively transferred the Plaintiff into the JLAP program, where he would remain until JLAP returned him back to the BLE with the January 22, 2009 filing of Tim Sudrovechs recommendations. 31. Plaintiff was under a duty to be absolutely and totally candid in all matters, including all psychological or psychiatric examinations, pursuant to the laws governing bar admission. A finding that Plaintiff was less than honest, open and ruthlessly candid in this process could result in denial. Plaintiff was thus completely open, honest and candid in all matters detailed herein.

App. 72 32. Plaintiff placed a call to Tim Sudrovech immediately upon leaving the January 25, 2008 hearing and requested a meeting. 33. About two months later Tim Sudrovech contacted Plaintiff and told him that he was to meet with Defendant Dr. Steven Ross, a Fort Wayne psychologist affiliated with JLAP, for an evaluation. 34. Upon information and belief Dr. Ross was chosen for this assignment due to his specialization in religion. 35. Upon information and belief Dr. Ross was subjected to pre-briefing on Plaintiff by Defendant Sudrovech and Defendant Does and possibly other Defendants named herein. 36. Plaintiff was given a battery of three psychological examinations by Ross in the two meetings at his Allen County office. 37. Plaintiff was troubled by the religious and political content of the questions on the psychological examination during his initial meeting at Dr. Ross office and began taking notes of his concerns. 38. These notes constituted the work product of a licensed attorney of the State of Kansas who was representing himself at the time and contemplating this very court filing. 39. Dr. Ross did then order Plaintiff to surrender his work product and do nothing to preserve any of the test questions asked of him.

App. 73 40. Plaintiff alleges that this seizure of his work product was done to obfuscate the religious and political nature of the questions asked of him on the alleged Minnesota Multiphasic Personality Inventory II (MMPI-2) psychological examination. 41. Dr. Ross agreed to safeguard Plaintiff s work product. 42. Plaintiff met with Dr. Ross on numerous occasion [sic] after that initial seizure of the notes pursuant to Defendant JLAPs requirement. 43. Dr. Ross issued a report dated April 23, 2008 in response to the testing and counseling sessions. 44. That report identified Plaintiff as a pro-life person with a traditional Christian worldview and constitutional, conservative political perspective who intended to advance the pro-life and Christian cause through the ArchAngel Institute. 45. In that April 23 report Dr. Ross concluded that Plaintiff appears to have moral integrity. 46. In that April 23 report Dr. Ross concluded that he had found nothing that should preclude Mr. Brown from taking the bar exam. 47. Defendant Sudrovech refused to accept this conclusion of the governments chosen and pre-briefed expert Defendant Dr. Ross. 48. That April 23 report also included the following statement that Defendant Tim Sudrovech employed to delay issuing a report from JLAP that was

App. 74 necessary to move Plaintiff s application to the Indiana bar: [Mr. Browns] emotional expressiveness and mood variability suggest to me the possibility of a sub-clinical bipolar disorder of a hypomanic type. (emphasis in original) 49. Upon information and belief emotional expressiveness refers to Plaintiff s religious and pro-life communications. 50. Upon information and belief this statement was inserted into Dr. Ross report for prejudicial reason and with discriminatory intent. 51. Plaintiff alleges that this statement was inserted into the Ross report for the very purpose of causing a remand to a psychiatrist. 52. That April 23 report also included the following statement that Defendant Tim Sudrovech employed to delay issuing a report from JLAP that was necessary to move Plaintiff s application to the Indiana bar: I am not making these statements purely based upon the fervor of Mr. Browns religious beliefs and convictions. . . . The fervor, however, in which he represents himself vis a vis others and the intensity of his interpersonal style suggests a sub-clinical level of a bipolar disorder which would warrant further consideration by a psychiatrist. (Emphasis added) 53. Upon information and belief this focus upon Plaintiff s emotion expressiveness and religious beliefs and convictions is a product, at least in part,

App. 75 of the Minnesota Multiphasic Personality Index 2, a test administered to Plaintiff by Defendant Dr. Ross. 54. Six weeks after receipt of this report Defendant Sudrovech issued his own responsive report tendering the Ross report to the IBLE. That report mandated that Plaintiff see a psychiatrist of the governments own choosing and pre-briefing. 55. Plaintiff alleges that a conspiracy to deny his civil rights is evidenced by the Defendant Tim Sudrovechs reliance upon these statement [sic] to keep Plaintiff within the confines of the JLAP system while Sudrovech, at the same time, admitted in a report filed with the IBLE that Mr. Brown does not meet the diagnostic criteria for the [bipolar] disorder. 56. Thus Defendant Dr. Ross tendered to a state agent, upon the request of the state agent, after being assigned to the file by a state agent and after being pre-brief by a state agent a report weighing religious and political beliefs to conclude that it was Plaintiff s fervor and emotional expressiveness (which was, at least in part, religious) that led to the hypothetical diagnosis of a mental illness that only a specialist in psychiatry could detect (subclinical) and that results only in elation and not depression (hypomania). 57. This bipolar hypothesis caused Plaintiff no small amount of concern, given such branding can limit ones future as to insurance, employment and much else.

App. 76 58. Dr. Ross report further detailed, in vague and uncertain terms the results of three psychiatric tests that he had administered to Plaintiff. 59. Dr. Ross report implied that Plaintiff passed all three tests, but that his returns on the MMPI-2 (the exam he was taking when his work product was confiscated) were the least normative of the three. 60. Plaintiff was concerned about the content and perceived errors in the Ross report and immediately contacted Defendant Sudrovech requesting a meeting to discuss the same. 61. Defendant Sudrovech then refused to meet with Plaintiff for the second time and instead advised Plaintiff to take his concerns up directly with Dr. Ross pursuant to the following paragraph from the Ross report: Should you [Mr. 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 either you or Mr. Brown have any specific questions, please do not hesitate to contact me. 62. Plaintiff alleges that Defendant Sudrovech should have requested such a revision either before or after reading Plaintiff s concerns about alleged errors and discriminatory biases evident in the Ross report. 63. Plaintiff wrote Dr. Ross two letters stating his concerns and requesting corrections, one dated June 12 and the second dated June 24, 2008. Both of those letters were subsequently copied to Defendant Sudrovech.

App. 77 64. These letters raised several significant issues, including (1) the use of political and religious questions in psychiatric testing devices used by the State of Indiana suggesting that a political-religious orthodoxy exists (2) the use of religious questions and discussions as the gravamen of psychological analysis in the context of bar admission, (3) the hypothetical diagnosis that Defendant Sudrovech was using to hold up Plaintiff s application and (4) repeated requests for the return of Plaintiff s work product. 65. In the June 12 letter Plaintiff requested a more objective and scientific reporting of the result of his testing, stating It is my understanding that none of these three tests resulted in a pathological finding. I request that the actual, objective results of these three exams be clearly reported in the opening section of your report. 66. This request was not answered and no changes were made to the final report. 67. As to the testing, in the letter dated June 12, 2008, Plaintiff wrote: The imprecise and intrusive personal questions were bothersome to me, but the religious questions were even more disconcerting. More than a few probed my views of the Divine, angels, sexual mores, sin and redemption. I have some understanding of the major doctrines of Christianity, and must report that most all were probed on the MMPI-2. I

App. 78 realized, as the test unfolded, that this was the anti-religious test that I had read about in orthodox Catholic literature. 68. Plaintiff wrote Dr. Ross, on June 24, 2008, stating: I believe that the April 23 report would be improved if you attempted to present the growing body of literature, or at least a passing reference to the same, calling the MMPI-2 into question as a test for those of a religious persuasion. I believe that the failure to disclose this common critique is an omission rising to the level of a testing-instrument error. 69. None of the afore pled requests were answered and no changes were made to the final report. 70. As to the testing, in a letter dated June 24, 2008, Plaintiff further wrote It is my belief that my file contains objective evidence that was not communicated in your April 23 report, said objective evidence being, inter alia, a finding of near normalcy (except as to religious conviction and expression) on all three of the psychological tests I was ordered to undergo. Restated, I believe that my file, unlike your April 23 report, communicates that I pretty much passed the full psychological battery of more than 1300 questions put to me under the authority of the Indiana Supreme Court. Please correct this assumption if it is in error, Dr. Ross.

App. 79 71. This request was not answered and no changes were made to the final report. 72. Upon information and belief Plaintiff was subjected to a specialized form of the MMPI-2 that was specifically developed for use on Roman Catholic seminarians rather than the most common form of the MMPI-2. 73. Plaintiff s allegation arises out of Dr. Ross posttesting email to Plaintiff stating please note that the MMPI is an instrument widely used by Catholic dioceses as part of the selection process for priesthood. 74. Upon information and belief, Defendant Tim Sudrovech, as advised by other Defendants and/or Defendants Doe, chose Dr. Ross for this assignment and prepared Dr. Ross to meet with Plaintiff in prebriefings. Upon information and belief Defendant Ross was chosen due to his expertise in interview with religious persons that is a byproduct of his status as a former Roman Catholic seminarian. 75. In one of the meetings Dr. Ross commented that Plaintiff did not present nearly as troubled as he had been led to expect. 76. Upon information and belief Defendant Tim Sudrovech and/or others, in preparing Dr. Ross, communicated to him certain expectations and intents that they held for the processing of Plaintiff through JLAP. 77. Believing that the testing and interviews with Defendant Ross had been far more focused upon

App. 80 religion than necessary, Plaintiff notified Dr. Ross of the need to preserve the religious nature of the interview in Plaintiff s letter of June 12, 2008. This request was not answered and no changes were made to the final report. 78. In the June 12, 2008 correspondence Plaintiff transcribed part of the interview in which Plaintiff was asked if he thought that he had enemies, and if, so, to identify his greatest enemy. When Plaintiff responded with the well known and commonly taught words of Martin Luther on the subject he was rebuked by Defendant Dr. Ross as stating something that simply should not be said. Plaintiff wrote to Dr. Ross: You informed me that I was my worst enemy. (You did not say, not Satan, but that certainly was the upshot of the message.) 79. As to the hypothetical diagnosis based upon religious fervor that Defendant Sudrovech was using to hold up the application, Plaintiff wrote: I request that the possible sub-clinical diagnosis of a hypomanic kind be more precisely and scientifically set forth in your report, including references to test results raising this question. This request was not answered and no changes were made to the final report. 80. In Plaintiff s second letter to Dr. Ross shared a large body of study noting that bipolar disorder was one of the most frequently over diagnosed conditions and was unlikely to show itself past mid-life. Plaintiff further requested that Dr. Ross please also note in

App. 81 your report whether your analysis made use of the above referenced HCL-32 or any other standardized testing for bi-polarity, and please note that your analysis did not seek out any input from or about my family or friends. This request was not answered and no changes were made to the final report. 81. Plaintiff was evaluated by Valeo Behavioral Health in Topeka six months prior to the Ross report. Valeo did not record any reason to suspect bipolar disease. Plaintiff was evaluated by Dr. Tom Sass, Dr. Bryan Flueckiger, Dr. William Alexy and Dr. Elizabeth Bowman in the months following the Ross evaluation. All of the aforementioned rejected the Ross hypothesis of a bipolar condition. Defendant Bowman labeled it superficial and noted that at age 50 with no predicate past Plaintiff was an unlikely candidate for such a diagnosis. 82. Upon information and belief Plaintiff had been so diagnosed as an artifice to grant Defendant Sudrovech reason to remand Plaintiff to a statechosen psychiatrist for further evaluation. 83. Plaintiff sought his hand written notes (work product) or copies thereof from Dr. Ross in his letters of June 12 and 24. Dr. Ross denied Plaintiff s reasonable request. Plaintiff sought these notes from Defendant Sudrovech to no avail. 84. Plaintiff sought assurances that his work product had not been destroyed and threatened court action to ensure that they were safeguarded. Defendant Ross then agreed to allow Plaintiff a few

App. 82 minutes to review his notes so that he could ascertain that they were being kept, but allowed no copies of the same to be made. 85. Plaintiff s review of these notes, over and against his ongoing study of the MMPI-2 and other psychological tests, raised yet more concerns on his part that the work product had been seized because it constituted evidence of a common plan to inquiry into areas of religion and politics that should not be the subject of state-ordered testing. Plaintiff transcribed these questions from memory after this review and sent them, with his constitutional concerns stated, to Defendant Sudrovech. Copies of that correspondence are attached hereto as Exhibit A. 86. Upon information and belief Plaintiff was denied this work product because it constitutes evidence of the wrongful use of an iteration of the MMPI-2 that is generally designed for identifying those of a conservative theological bent in religious ministry. 87. Plaintiff alleges that the State of Indiana, through JLAP, had no constitutional ground upon which to evaluate him against the backdrop of the MMPI-2, which is, upon information and belief, nothing more than a device build from public opinion surveys and then engineered to advance the social goals of the political correctness movement. 88. On June 24, 2008 Plaintiff wrote the IBLE Alleging an inordinate focusing upon my religious views during the interview with Dr. Ross and

App. 83 concerns about biases inherent in the religiouslybiased Minnesota Multistate Inventory 2 89. Plaintiff received no response from the Board. The day that this report was received in the offices of the government Defendant Tim Sudrovech informed Plaintiff that the forward progress of his application would be slowed if he did not drop the line of questioning put to Dr. Ross. 90. Defendant Sudrovech wrote I understand that it is YOUR choice, but I would be remiss if I did not warn you that by not pursuing a referral to a psychiatrist for further evaluation as recommended by Dr. Ross and JLAP, that you are delaying the Board of Law Examiners (BLE) ability to consider your application. I would suggest that if you wish to continue to pursue your current direction with Dr. Ross, that you notify Linda Loepker at the BLE that you are doing so. 91. On July 30, 2008 Plaintiff again wrote Defendant Sudrovech. Plaintiff accepted Sudrovechs June 4 offer of a mentor for JLAP program. Plaintiff also requested, for the third time, a meeting with JLAP. Defendant Sudrovech did not response [sic] to Plaintiff s acceptance of an offered mentor, request for a meeting or explanation of Plaintiff s concerns. 92. Having exhausted all avenues toward the improvement of Dr. Ross report, Plaintiff wrote Defendants Sudrovech, Harrell and BLE Executive Director on September 8, 2008 explaining in detail his reasons for fearing that the process being employed against

App. 84 him was improperly [sic] considering his religious and political beliefs. 93. Plaintiff requested an independent review of his case by state officers trained in constitutional and civil rights laws and requested a meeting with JLAP officials for the fourth time. Plaintiff received no response to the letter and no responses to his multiple requests for an independent investigation of his allegations of the violation of his civil and constitutional rights. 94. Plaintiff alleges that the entire process before Dr. Ross as set forth in the preceding paragraphs evince an effort to force Plaintiff to accept a state defined orthodoxy antithetical to his religious and political beliefs. Plaintiff alleges that this attempt to force him to accept a state defined orthodoxy was the work of many persons, both governmental and private, working toward the same unlawful goal while motivated by bias, invidious discriminatory intent and animus. 95. In his April 23 report Dr. Ross recommended that Plaintiff see a psychiatrist based upon his hypothetical diagnosis of hypomanic bipolar disorder and mentioned one in particular by name, that one being identified as a close associate of Dr. Ross. That psychiatrist will herein be identified as Dr. F. 96. Plaintiff raised conscience objections to secular psychiatry in general, believing it to be antithetical to his Catholic faith and conservative, constitutional perspective on many levels.

App. 85 97. Plaintiff also argued that the State lacked a predicate to so violate his religiously informed conscience, since the remand to a psychiatrist was merely predicated upon Defendant Dr. Ross concerns that Plaintiff s religious fervor . . . suggests a sub-clinical level of a bipolar disorder which would warrant further consideration by a psychiatrist. 98. Plaintiff also argued that the State lacked a predicate to so violate his religiously informed conscience, since Defendant Sudrovech had admitted in his report that Mr. Brown does not meet the diagnostic criteria for the [bipolar] disorder. These objections were ignored by Defendant Sudrovech. 99. Given all that had transpired, Plaintiff requested of Defendant Sudrovech a second opinion from a psychiatrist not closely affiliated with Dr. Ross. This request was denied. 100. Plaintiff then explained, in greater detail, his concerns and reservations about the process to date and again requested a second opinion outside the affiliation of Dr. Ross. 101. On September 9, 2008, Plaintiff asked permission to see a Fort Wayne psychiatrist of his own choosing rather than one of Dr. Rosss choosing. Defendant Sudrovech replied that JLAP would be the one to provide the psychiatric referral and that in this case JLAP was trusting the referral of Defendant Dr. Ross.

App. 86 102. Defendant Sudrovech further explained this policy as follows: JLAP only uses referral sources who we are familiar with, or come highly recommended. Defendant Sudrovech then wrote that the policy of JLAP is as follows: any psychiatrist that the State will use must be chosen by JLAP from JLAPs list of acceptable providers and then first be briefed by a JLAP agent, and then briefed by the previous counselor, and only then is an applicant allowed to see the referred provider. 103. Upon information and belief that list of approved providers is determined based upon personal relationship and/or ideological conformity with Defendants Sudrovech, Harrell, Bowman or unnamed co-conspirators. 104. Defendant Sudrovech stated that no matter who JLAP referred, the process would be as follows: JLAP will need to speak to the provider first. . . . with any referral that JLAP makes, we speak to the provider first. That way they are aware of the history behind the referral and are not seeing the client blind for the first session. 105. Plaintiff interpreted this system one that would front-load discriminatory biases, recalling that Dr. Ross had commented that Plaintiff had not seemed as troubled as the pre-briefing had suggested. 106. Plaintiff, realizing that his constitutional concerns and repeated requests for an independent review of his case were being ignored, thus asked to be allowed to meet with a psychiatrist before such a

App. 87 briefing to develop his own expert. Dr. F was then proclaimed the only viable alternative and Plaintiff was told to make an appointment with him or risk dismissal of his application for bar admission. 107. On September 16, 2009, after repeatedly seeking leave to be evaluated by a psychiatrist not affiliated with Dr. Ross or JLAP, Plaintiff self-presented to St. Josephs Medical Group Psychiatric Care unit, Dr. Bryan Flueckiger, for an evaluation. Dr. Flueckiger was familiar with such evaluations as the Indiana authorities sought and stated that the psychiatric profession considered a one hour session sufficient time to make an evaluation such as that recommended under Rule 12. 108. Dr. Flueckiger had read through the Ross report, reviewed the testing data from Dr. Ross and reviewed Rule 12, among other sources, before meeting with Plaintiff. After the one hour evaluation Dr. Flueckiger stated that he could recommend Plaintiff as an Indiana attorney pursuant to Rule 12. 109. Defendant Sudrovech again informed Plaintiff that he had to be evaluated by Dr. F or suffer the potential dismissal of his application for failure to follow JLAPs instructions. Plaintiff then lodged his conscience clause objections to the process with Defendant Harrell and made an appointment for an evaluation for the purpose of joining the Indiana bar with Dr. F as directed by JLAP. 110. Terry Harrell then agreed to pre-brief Dr. F personally, as that Tim Sudrovech was out of the

App. 88 office. Upon information and belief Defendant Terry Harrell did so brief Dr. F. 111. When Plaintiff showed up for the appointment Dr. Fs nurse informed Plaintiff that Dr. F did not perform evaluations of the kind that JLAP sought. This was surprising since Plaintiff had clearly disclosed to the person who set up the appointment with Dr. F that the appointment was for an evaluation pursuant to Rule 12 for admission to the Indiana bar. 112. Upon information and belief Dr. F came to the conclusion to cancel the appointment after being briefed by either Defendant Terry Harrell or Defendant Dr. Ross. Upon information and belief Dr. F decided to not perform the evaluation after consideration of the nature of the pre-briefing given to him and/or the result that was asked of him. 113. Dr. F, the expert previously recommend by JLAP then recommended, in writing, that Plaintiff be evaluated by either of two local psychiatrists. One was Dr. Bryan Flueckiger. 114. Plaintiff tendered this recommendation to Defendants Sudrovech and Harrell and asked to be sent to one of these psychiatrists who were recommended by the very expert that these Defendants had been mandating for months. These experts were both dismissed as a nonviable alternatives to Dr. F by JLAP for reasons not explained. 115. Plaintiff immediately offered to drive 1500 miles round trip to Valeo Behavior in Topeka, Kansas

App. 89 for the needed psychiatric evaluation. Plaintiff presented this as an objective path toward psychiatric review that had already established a baseline for him and that was independent of both Dr. Ross and Defendants. Defendant Terry Harrell refused this request. 116. Defendant Harrell then ordered Plaintiff to choose one of two psychiatrists in Indianapolis, both of whom were associated with Indiana Universitys School of Psychiatry, and none other. Plaintiff was informed that he had a very limited time in which to complete these psychiatric exams or suffer dismissal of his application. 117. On October 3, 2008 Plaintiff once again requested permission to see the Fort Wayne-based Board certified psychiatrist Dr. Flueckiger, who was actually recommended by both Dr. F and Dr. Steve Ross, two experts otherwise trusted by JLAP. Plaintiff communicated at that time that he was not seeking to see Dr. Flueckiger in lieu of JLAPs designated psychiatrist, but only as his own in order to develop his own case. 118. Plaintiff asked that Dr. Flueckiger be briefed in the same manner as was Dr. Ross and Dr. F. Defendant Sudrovech refused to brief Dr. Flueckiger. 119. Plaintiff then escalated his request for a briefing, asking Defendant Terry Harrell to ensure that Tim Sudrovech had Dr. Flueckiger briefed just as Dr. F was briefed so that he could be an expert witness for Plaintiff. Defendant Sudrovech then emailed

App. 90 notice that Dr. Flueckiger could be so briefed as an expert if a release was signed. It was [sic] 120. While attempting to persuade the government Defendants to brief Dr. Flueckiger so that he could be useful as an expert witness, Plaintiff sent email to the Defendants Sudrovech and Harrell communicating his concerns about the process and asking that any subsequent actions by JLAP be just, true and untainted by political and/or anti-religious concerns and again requesting an investigation of his allegation of civil rights violations. 121. On October 13, 2008 Plaintiff once again voluntarily reported to Dr. Bryan Flueckiger of St. Josephs Medical Group Psychiatric Care unit for a second hour of evaluation. Upon his arrival at Dr. Flueckigers office Plaintiff learned that Defendant Sudrovech had not briefed Dr. Flueckiger as was repeatedly requested by applicant and was allegedly ordered by Defendant Harrell. 122. Dr. Flueckiger found Plaintiff to pass review under a Rule 12 analysis and subsequent to this meeting produced a report stating the same. (Report attached as Exhibit B) Upon information and belief Defendants Sudrovech and Harrell pre-brief only those experts from whom they wish to receive reports, and then considering only the reports of those experts whom they have pre-briefed. 123. In October, 2008, Plaintiff again requested a meeting with Defendants Sudrovech and Defendant Harrell. Plaintiff was told that there would be no

App. 91 such meeting, and no final report, until and unless he subjected himself to a psychiatrist of JLAPs own choosing. 124. Defendant Harrells designated, two Indianapolisbased, government-affiliated psychiatrists instructing Plaintiff to choose one of them. Plaintiff did so while clearly communicating that he was doing so under protest and while raising a religious and legal conscience-based objections to the process being used, citing both the Indiana and Federal constitutions while so doing. 125. Plaintiff did so, in part, to gain a meeting with JLAPs Tim Sudrovech and Terry Harrell. 126. Defendant Terry Harrell responded that she was recommending Dr. Elizabeth Bowman and one other because they were providers that we know and recommend. Defendant Harrells notice of Bowmans contact information did not reveal that her practices was dubbed Choices or that she was a dedicated and long time feminist activist. 127. Upon information and belief Defendant Harrell knew this fact and realized that Plaintiff, as a pro-life Roman Catholic, would find it significant in his decision as to which of the two government-affiliated psychiatrists to see. 128. Plaintiff was past a deadline due to the Defendants error as to the availability of Dr. F and so immediately placed calls to both of the State-designated experts. Dr. Elizabeth Bowman promptly returned

App. 92 the call and stated that she could see Plaintiff almost immediately. 129. Upon information and belief Dr. Elizabeth Bowman knew of Plaintiff s identity as a pro-life Christian before he contacted her on that day. 130. Defendant Tim Sudrovech notified Plaintiff that both he and Dr. Ross would brief Dr. Bowman regarding Plaintiff almost immediately after receipt of Plaintiff s releases authorizing such contact with Defendant Dr. Bowman 131. Dr. Bowman immediately rejected Plaintiff s advice, based upon Dr. Flueckigers professional opinion, that such evaluations should take only an hour and ordered Plaintiff into two sessions within four days, one being a double session. Two more sessions followed after those. 132. All of these sessions took place in a borrowed office of another psychiatrist. Upon information and belief such an office was used because Defendant Bowmans own office was identified by the moniker Choices and is appointed with memorabilia that would have revealed her deep seated prejudices against Plaintiff s Roman Catholic faith and conservative political opinion. 133. In these encounters Dr. Bowman focused upon Plaintiff s religious and political beliefs and associations to the exclusion of almost any other topic. 134. Doctor Bowman underreported the time spent in session in her final report and misreported the

App. 93 number of times that Plaintiff met with her. This error in the reporting of number of sessions and hours in session ended up in the final report of the BLE. 135. Due to the time constraints Plaintiff was unable to undertake much of an investigation of Dr. Bowmans body of work prior to his sessions with her, but had located one academic journal in which she had warned of the potential psychiatric harms that accompanied exorcism undertaken by clinicians as a form of psychiatric treatment. 136. At the beginning of their first session Plaintiff asked Dr. Bowman about her views on such matters, noting that she had written a letter to an academic journal stating that clergy should be subjected to discipline if they performed exorcisms on persons presenting with multiple personality disorder. 137. Dr. Bowman then abruptly informed Plaintiff that she would be doing the asking and that he would doing the answering in their sessions together and that her background and ideas were not at issue and irrelevant to the task at hand. 138. After four sessions that lasted an estimated six or more hours in duration Defendant Bowman authored a report that concluded, unlike any of the previous professional counselors, that Plaintiff suffered from a personality disorder. 139. Like Defendant Dr. Ross with his possible hypomania, Dr. Bowman was not able to fully define this malady stalking the Plaintiff, and thus tagged

App. 94 Plaintiff with the vague label Personality Disorder, Not Otherwise Specified. 140. Upon information and belief this label is given, in the main, due to Plaintiff s open and uncompromised adherence to the Roman Catholic Magisterium, as her report reveals: His conscience has been shaped by his Roman Catholic beliefs, to which he came in adulthood while seeking moral certainty. 141. Dr. Bowmans first substantive question of Plaintiff was whether the ArchAngel Institute was inclusive of all religions or only Plaintiff s faith expression. Plaintiff assertion that it was built upon the revelation given only to Christocentric expressions of faith was met with perceived disdain. 142. Dr. Bowmans report accused Plaintiff of religious arrogance for such insolence in her final report, finding that arrogance basis for an allegation of narcissism that then supported her ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 143. Dr. Bowman asked Plaintiff what problems he had with Dr. Ross. Plaintiff explained his belief that the test questions and seizure of work product violated his constitutional rights and noted that case law circumscribed the proper focus of government evaluations. 144. Dr. Bowman then ordered Plaintiff to quote no more cases to her and notified Plaintiff that she could ask any question and probe any area that she

App. 95 thought germane, regardless constitutional barriers regarding religion or politics. 145. Her report further charged Plaintiff with speaking ill of Dr. Ross, liberals and psychotherapy and showing off by quoting cases to her, finding in that the basis for an allegation of narcissism that then supported her ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 146. Plaintiff was asked to explain why he had resisted an evaluation from Dr. F. Plaintiff explained that he sought an evaluation independent of Dr. Rosss influence. Defendant Dr. Bowman then revealed that Dr. F had been her student and she was his mentor. Upon information and belief such could probably be said of most all of the small cadre of JLAP approved providers. 147. After ordering Plaintiff to recount his family history in detail Dr. Bowman announced that his prolife zeal was a byproduct of his emotional response to the premature birth of his younger twin brothers, stating They must have looked like skinned rat terriers, and having been put in the position of caregiver for them in your early adolescence later caused you to identify with fetuses in the pro-life movement. 148. Plaintiff disagreed with Dr. Bowmans analysis, countering that he was pro-life due to the fact that Mary, soon after the Holy Spirit overcame her, visited Elizabeth, who announced that John the Baptist leapt in her womb. Plaintiff informed Dr. Bowman

App. 96 that this event caused him to conclude that John had personality late in the second trimester and that Jesus was in Marys womb as a distinct person at conception. 149. Dr. Bowman then challenged Plaintiff to realize and appreciate that others interpreted that scripture quite differently, holding that Elizabeth merely read too much into a flutter in her abdomen. Plaintiff informed the state-mandated psychiatrist that he was Roman Catholic and that his Church instructed him in the proper interpretation of that scripture and that the pro-life ramifications of it were his truth, regardless of how others interpreted it. 150. Dr. Bowman recorded in her final report that Plaintiff had offended her and devalued her faith with such responses, rendering it basis for an allegation of narcissism and that then supported her ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 151. Upon information and belief the above is evidence that Defendant Bowman was unable to detach her own personal biases and invidious discriminatory intent from per [sic] professional duties to the state. Plaintiff alleges that once this was discovered all Defendants had a duty to recall the Bowman report, and that the failure to do just that is evidence of malice, bias and invidious discriminatory intent. 152. Dr. Bowman informed Plaintiff that he had caused much trouble in Fort Wayne in the late 80s and early 90s and that he should not think that it

App. 97 would have just been forgotten. Upon information and belief Dr. Bowman and/or other Defendants, including Defendant Does, had firsthand knowledge of Plaintiff s pro-life volunteer in Fort Wayne in that time period. 153. Dr. Bowman informed Plaintiff that he placed his values and morals higher than legal obligations and by so doing shared much in common with early church, including being at odds with the state. That Plaintiff s conservative political and Roman Catholic views were the primary focus of Dr. Bowmans interviews are evident throughout Dr. Bowmans final report and are used to support her conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 154. Dr. Bowmans report stated that: Like many people of faith of past millennia, he firmly believes he is obligated as a Christian to put obedience to Gods laws above human laws. Id.; He considers his [former protest activities] an integral part of his Roman Catholic Christian faith and considers his actions morally right. Bowman report at p.4; 155. Upon information and belief this report influenced the final Board of Law Examiners final report stating that: He testified [as] to his obligation to disobey laws that contradicted his religious beliefs under certain circumstances. [He further]

App. 98 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. Board report at pp.29-30. 156. Dr. Bowman distilled the following from Plaintiff s religious and political perspectives after inquiring into the work of the ArchAngel Institute and Plaintiff: He bragged about ArchAngel Institute and devalued the abortion providers whose clinic site he took over for this institute. 157. Thus Plaintiff s recounting of his work in redeeming a dilapidated abortion clinic was counted as evidence that he was narcissistic, and that then supported her conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 158. Defendant Bowman also weighed Plaintiff s religious perspective to state: He showed lack of empathy for women whose pregnancies may be the result of rape or incest. Plaintiff has no recollection of discussing such exceptions in session, but such exceptions are indeed discussed in most pro-life literature and in the Catechism of the Catholic Church. Thus Plaintiffs adherence to Catholic doctrine was counted as evidence of narcissism and that then supported

App. 99 her ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 159. Defendant Bowman also weighed Plaintiff s religious perspective to state He showed lack of empathy for . . . the plaintiffs against him in the federal suit who were left with their attorneys fees to pay. Thus Plaintiff s lack of good will toward those who benefit financially from the volitional termination of nascent human life and who sued him out of economic existence under legal theories later scuttled by the Supreme Court was counted as evidence of narcissism and that then supported Bowmans conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 160. Defendant Bowman demonstrated a lack of toleration of Plaintiff s religious opinions by reporting that: He showed lack of empathy for . . . this evaluator whose profession and presumed religious beliefs he repeatedly devalued. Thus Plaintiff s sincere and unvarnished explanation of his Catholic faith was used as evidence that he was narcissistic and that then supported Bowmans conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 161. Defendant Bowman, who was asking all of the questions by her demand, complained that Plaintiff regularly returned to the topic of abortion and his views on it, This religious and political hot potato was thus marshaled as evidence that Plaintiff was obsessive compulsive and that then supported

App. 100 Bowmans ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 162. Still focused on Plaintiff s thoughts, Defendant Bowman concluded that Mr. Browns thinking showed obsessions with viewing mental heath [sic] assessments as subjective, biased against religion, and negatively inclined toward him. Thus Plaintiff s prescience and insight (in fact her final report was focused upon thoughts and beliefs, was biased against his religion and was negatively inclined toward him) was marshaled as proof that Plaintiff was obsessive compulsive and that then supported Bowmans ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 163. 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) Thus Plaintiff s low view of psychiatry and abortion was marshaled as evidence that he was arrogant and thus narcissistic and that then supported Bowmans ultimate conclusion that Plaintiff suffered from Personality Disorder, Not Otherwise Specified. 164. As to Plaintiff s future, Dr. Bowman mined his religious and political perspectives to issue the following warning in her final report: Since Mr. Brown has spent most of his legal career and personal life involved in litigation related to religious rights and on

App. 101 opposing abortion I believe he would be likely to use admission to the bar of any state to continue to work for religious rights . . . If admitted to the Indiana bar he would likely continue his anti-abortion activities . . . Thus Plaintiff was weighed in the balances and found very much wanting by the Defendants because he was constitutional law attorney dedicated to use his experience to advance his religion and protection of nascent human life. 165. While Dr. Bowmans report does include some positive statements about Plaintiff, her report does not contain a conclusory statement that parallels Dr. Ross conclusion that he could not identify a reason to preclude the Applicant from sitting for the July 2008 examination Board order, Para. 41. 166. Defendant Bowman told Plaintiff that during the pro-briefing Defendant Sudrovech had instructed her to not record a final conclusion as to Plaintiff s ability to pass 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. 167. Plaintiff had retained Dr. Bowman to receive just such a conclusion from her, just as he had from Dr. Ross and Dr. Flueckiger. Had Plaintiff known of Defendant Sudrovechs directive otherwise he would not have retained Dr. Bowman, just as he would not have retained her had he known of her associations, published materials and focus of her practice.

App. 102 168. The final section of her report, entitled the Evaluators conclusion states, inter alia, that I find him not psychotic, not depressed at this time, not having bipolar disorder, and to have moral integrity. The report does not, however, state that Plaintiff passes muster under Rule 12 analysis. 169. Every other mental health practitioner who evaluated Plaintiff came to the same conclusion Dr. Ross merely hedged his bet on the bipolar issue for reasons not completely evident at this time but alleged to be the product of collusion between the Defendants. 170. Based upon the reasons set forth above, Plaintiff alleges that Defendant Dr. Bowman diagnosed Plaintiff with Personality Disorder, Not Otherwise Specified based upon his Roman Catholic, pro-life, pro-family and constitution-respecting conservative perspectives on religion and politics. 171. Plaintiff took issue with this conclusion affecting fitness, which had been reached by none of the more than six other mental health professionals who had evaluated him in the preceding year, filing a lengthy statement with the government authorities allegedly supervising this process seeking a redress on the errors, reliance on religion and reliance on politics in the Bowman report. 172. Plaintiff s concerns were ignored, JLAP accredited the report when tendering it to the Board and the Board used much of the Bowman report is [sic] its

App. 103 final report dated, but not signed, on September 25, 2009. 173. As part of her evaluation Dr. Bowman required Plaintiff to present to psychologist Dr. William Alexy, who subjected Plaintiff to three additional psychological examinations during a more than three hour interview. 174. Dr. Alexy issued a final report on Plaintiff that concluded, in part, his feelings and emotions are normatively controlled and well-modulated. . . . P.4, L.2, his reality testing is within normative expectations, P.4, L8, He generally interprets the world in a way that is consistent with good reality testing. There is also the suggestion that when the world sends him high information/low ambiguity data he can generally be expected to behave according to social convention. Id. His thinking processes are logical, coherent, sequential and pertinent. P.4. He takes very seriously and importantly the role that he plays as husband and father to his family. P4. And there is no suggestion of a significant thinking disturbance P.4, L.14, and I do not see any compelling evidence of Bipolar Disorder P.5, L.4 and I certainly can see Bryan functioning adequate as a practicing attorney Report of Dr. Alexy, Nov. 30, 2008 175. Dr. Bowman asserted in her final report that Dr. Alexy felt Mr. Brown would benefit from individual

App. 104 psychotherapy with a woman therapist. This statement is nowhere found in Dr. Alexys report. 176. Plaintiff spoke with Dr. Alexy by telephone at 4:30 pm on May 12, at which time Dr. Alexy denied making such a recommendation. Dr. Alexy then informed Plaintiff that he did not agree that Plaintiff needed to be referred to any professional based upon that counselors gender. 177. Upon information and belief the statement that Dr. Alexy felt Mr. Brown would benefit from individual psychotherapy with a woman therapist in the Bowman report is fraudulent as well as evidence of animus and invidious discriminatory intent 178. Dr. Bowman asserts in her final report that Dr. Alexys testing concluded that Mr. Brown likely has Personality Disorder Not Otherwise Specified. This statement is nowhere found in Dr. Alexys 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. 179. Plaintiff reported the above inaccuracies in the Bowman report to government authorities allegedly supervising this process. 180. No curative action was taken, suggesting that fraud is welcome in this instance due to the bias, animus and invidious discriminatory intent marshaled against Plaintiff in response to his pro-life beliefs

App. 105 arising out of his traditional Christian worldview and constitutional, conservative political perspective. 181. After receipt of Defendant Bowmans inflammatory and discriminatory report Plaintiff began investigating Dr. Bowmans associations and publications. 182. Plaintiff located very little in the professional and peer reviewed journals authored by Dr. Bowman but discovered that Defendant Bowman has received professional awards for her work on religious syncretism in which religion is reconciled with modern psychiatry. 183. Plaintiff then discovered that Dr. Bowman was a Protestant cleric of a decidedly liberal persuasion (Master of Sacred Theology from the United Church of Christ affiliated Christian Theological Seminary) who claims extensive experience teaching and writing on spirituality who is actively involved in a mainline Protestant congregation and who has been an Evangelical and Womens Caucus member for so long that she cannot remember when she joined 184. The Evangelical and Womens Caucus was founded in 1973 to advance feminism, pro-choice ideology, women clergy and an end to the patriarchy. Dr. Bowman travels the country putting on seminars for such feminist groups, including a seminar that allegedly identifies an unhealthy religious system that conditions its adherents to respond with offensive spirituality and spiritual defenses. Such offensive and unhealthy spirituality is found, according to

App. 106 Elizabeth Bowman, in the exclusive use of male images of God and the patriarchy as a form of idolatry. 185. Upon information and belief Dr. Bowman has so presented in session alongside members of the Fort Wayne Feminists. Upon information and belief Dr. Bowman is now and has long been associated with leaders in the Fort Wayne Feminists. Fort Wayne Feminists were adverse to Plaintiff in federal litigation regarding abortion access that was filed in Fort Wayne in 1990 and that was referenced throughout Dr. Bowmans sessions with Plaintiff and in her final report. The leaders of the Fort Wayne Feminists are well acquainted with Plaintiff s pro-life activities in Fort Wayne in the late 1980s and early 1990s. 186. Plaintiff also discovered that Dr. Bowman appeared in a made for television docudrama entitled In the Grip of Evil in which she attempts to debunk Catholic exorcism and alleges that priests fabricated accounts of one of the most studied of all modern exorcisms. 187. Dr. Bowmans writings communicate religious intolerance against those of Plaintiff s traditional Catholic and Evangelical bent, including the following: To her credit, Dr. Mollenkott takes on Christian Doublespeak and confronts the logical contradictions of scriptural interpretation offered by the religious right in trying to crush homosexual and other

App. 107 transgendered people. These sections of her book in which she argues scriptural interpretations and theology are the most powerful portions. (http://www.eewc.com/Reviews/ Spring2001Omnigender.htm (emphasis added.) 188. Plaintiff also located the following seemingly malicious writings of Dr. Bowman: In her final chapter, Dr. Mollenkott quotes Martine Rothblatts description of a society that encourages freedom of gender. My response to such a society is sign me up! To me, this gender-free society would be a safer, more just, and more happy place for women. It would be nirvana; heaven on earth. In it, the salary discrimination I suffered at Indiana University and the religious sexual discrimination of my childhood would be unknown. Jesus would be comfortable in such a society but conservative religion, the church included, would either be nonexistent or would be horrified beyond words. (Emphasis added) 189. All of this was brought to the attention of the Defendants Sudrovech and Harrell, as well as all other government agents involved in the review of Plaintiffs application, No action was taken to redress the harm arising from these seeming biases. Upon information and belief the refusal to remedy the effect of such prejudices and intolerances is evidence of animus and invidious, discriminatory intent raised against Plaintiff due to his pro-life beliefs arising out

App. 108 of his traditional Christian worldview and constitutional, conservative political perspective. 190. Upon information and belief, evidence of animus and invidious discriminatory intent is found in the very dating of Dr. Bowmans report, especially in light of Plaintiff s disagreement with her on discussion of the nascent life of the Savior. Defendant Dr. Bowmans report was dated December 24, 2008. 191. Upon information and belief, evidence of animus and invidious discriminatory intent was shown when Defendant Bowman sent her report to Plaintiff s house with a personal note to Plaintiff s wife attached to the report. 192. In her report Dr. Bowman had opined that Plaintiff appeared unaware that he is now exploiting his wife and children by asking them to live with the unfortunate financial consequences of his unemployment while he serves his passion for anti-abortion activities in an unpaid position while his wife home schools three children. Dr. Bowman used this exploitation arising out of pro-life passion as evidence of Plaintiff s alleged narcissism and thus evidence leading to the diagnosis of Personality Disorder, NOS. 193. On or about December 30, a package arrived in the mail from Dr. Bowman. Upon opening it Plaintiff s wife discovered a personal, handwritten note that read as follows: John [sic] and Anne, Congratulations on the safe delivery of Judah Christopher!

App. 109 May he flourish and may you recover quickly, Anne. That was a big baby! Elizabeth Bowman. 194. Plaintiff was not home at the time and Plaintiff s wife did then read the Bowman note, which caused concern. Anne had given birth to a son who was a large baby named Judah Christopher only two days before this note was sent to their home attached to a confidential medical report. Upon information and belief this note to her patients wife reveals evidence of animus and invidious discriminatory intent. 195. Upon information and belief Defendant Tim Sudrovech received the Bowman report, a report that he and/or Defendant Harrell had front-loaded through pre-evaluation discussions with Dr. Bowman, joined by Dr. Ross, at about the same time as Plaintiff s wife. Upon information and belief Defendant Tim Sudrovech did not compare the Bowman report to the Alexy report. Defendant Tim Sudrovech did not in any fashion critique or correct the blatant reliance upon religion and political opinions found on the face of the Bowman report. Defendant Tim Sudrovech instead build [sic] upon the Bowman report, which did not, as he had requested, opine that Plaintiff could or should sit for the bar exam. 196. Once again, Defendant Sudrovech noted that Plaintiff did not meet the diagnostic criteria for any specific disorder much as he did when tendering the Ross report. However, since Plaintiff s political and religious views had proven so troublesome to Dr.

App. 110 Bowman, Defendant Sudrovech was able to report to the Board that Mr. Browns diagnosis is Personality Disorder, NOS. 197. Defendant Sudrovech noted that Dr. Bowmans report was based, in large part, upon Plaintiff s lack of empathy regarding issues associated with his beliefs. Defendant Sudrovech did not point out to the Board that those beliefs were at the core of the First Amendments zone of protection. 198. Defendant Sudrovech noted that Defendant Bowman credited Plaintiff s personality disorder as the source of his civil disobedience. Defendant Sudrovech failed to quote the sections of the Bowman report that stated that Plaintiff clearly has moral integrity, which has consumed his life and led, at times, to principled civil disobedience. and He has moral integrity [which has been] expressed in a manner that has led to principled civil disobedience based on his religious beliefs. 199. Simple logic thus reveals that the Bowman report equates Plaintiff s religious beliefs with Plaintiff s personality disorder. Defendant Sudrovechs report obfuscated, rather than revealed, this simple logic. 200. Defendant Sudrovech, MA, LCSW, then took upon himself the role of diagnostician, writing 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

App. 111 would. Going deeper into the practice of the psychiatric arts, Defendant Sudrovech then opined, However JLAP questions how much Mr. Brown would value the experience of psychotherapy, how appropriately engaged in a therapeutic process he would be. (Emp. in original) 201. Defendant Sudrovech held the Bowman report on his desk for approximately three weeks, causing it to be filed, and stamped by the BLE, on January 22, 2009, on the thirty-sixth anniversary of the Roe v. Wade decision. Plaintiff alleges that evidence of animus and invidious discriminatory intent is once again found in the dating of Dr. Bowmans report. 202. The Boards final report, which Plaintiff alleges to have been written, in large part, by one of the instant Defendants, quoted many pages of the January 22-filed and December 24-authored Bowman report. The Boards final report employed the Bowman report, in large part, to recommend that Plaintiff be denied admission based upon both moral character and mental fitness. Plaintiff repeatedly moved the government to recall the Bowman report for these glaring and obvious religious and political biases without success. 203. The Boards final report employed the Sudrovech report, in large part, to recommend that Plaintiff be denied conditional admission based upon Defendant Sudrovechs interpretation of Plaintiff s likely response to the conclusion that he would benefit from individual psychotherapy with a woman therapist.

App. 112 204. On May 7, 2009, Linda Loepker issued, as Executive Director of the Board of Law Examiners, a subpoena mandating JLAP to produce the entire contents of the file of Bryan J. Brown held by the Judges and Lawyers Assistance Program. Upon information and belief these files hold evidence of bias, animus and invidious discriminatory intent as well as a copy of the work product seized by Dr. Ross. Upon information and belief these files hold evidence of collusion between the Defendants named herein and, possibly, Defendants Doe. 205. Defendant JLAP, by and through Defendant Harrell refused to tender at least one file covered under subpoena. Defendant JLAP refused to describe that file or otherwise submit a privilege log. Plaintiff requested the Board to take steps to enforce its subpoena. No action was taken. 206. Soon after Dr. Ross and Tim Sudrovech briefed Dr. Bowman, Plaintiff received a bill from Dr. Ross that claimed to be more than four months overdue. Plaintiff paid the $175 under protest. 207. Defendants Dr. Bowman and Dr. Ross were vested with governmental authority through their willing collusion and close working relationship with Defendants Sudrovech and/or Harrell. * * *

265. Upon information and belief all of the foregoing alleges that Plaintiff was the subject of a conspiracy to fail him through the JLAP process by Defendants

App. 113 and others, including the Doe Defendants, acting in collusion and out of biases, invidious discriminatory intent and animus causing them to target him because of his pro-life beliefs arising out of his traditional Christian worldview and constitutional, conservative political perspective. VERIFICATION OF COMPLAINT I, Bryan J. Brown, a citizen of the United States and a resident of Indiana, have read the foregoing Verified Complaint Regarding Civil Rights Violations, and the factual allegations therein, and declare, under penalty of perjury as defined by the laws of the United States of America, the foregoing factual allegations of all paragraphs are true and correct to the best of my knowledge and recollection. Date: December 8, 2009 Bryan J. Brown

App. 114 St. Joseph [LOGO] Medical Group Psychiatric Care 415 E. Cook Road, Suite 100 Fort Wayne, IN 46825 Phone 260-6030 May 1, 2009 Re: Bryan J. Brown DOB: 1-25-1959 Received May 11 2009 State Board of Law Examiners

To Whom It May Concern: Mr. Bryan J. Brown has asked me to provide a summary of my psychiatric evaluation of him relative to his upcoming judgment by the Judges and Lawyers Assistance Program. He has provided me with the criteria against which he will be reviewed. My sessions with Mr. Brown occurred on 9-16-08 and 10-13-08 at his request. I have also reviewed additional psychological testing results which he provided to me. Regarding good moral character, it is my opinion that Mr. Brown DOES MEET this standard without question. He appears to hold to his personal and spiritual convictions without wavering. He expresses a clear respect for the law and the judicial process. However, his actions have apparently brought him into conflict with some legal entities in the past, but I believe it was not his primary intent to break the law.

App. 115 Regarding fitness, it is my opinion that Mr. Brown DOES MEET this standard. I am not qualified to comment on his interactions with the legal process or his fiduciary responsibilities. However, based on my evaluations, Mr. Brown possesses the mental stability required by your guidelines. I found him to have very strong opinions, which he based on extensive evidence gathered from multiple sources. He is passionate about his faith, family and work. He is highly energetic and very focused on his goals, and these characteristics appear to be very consistent. He approaches his goals in a logical fashion and does not appear to be impulsive, delusional, or grandiose. I hope this information is helpful to you in considering Mr. Bryan J. Brown for admission to the Indiana Bar. Sincerely, /s/ Bryan E. Flueckiger, MD Bryan E. Flueckiger, MD
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Lutheran Health Network Member Exhibit 52