Loubser, Annare v. Thacker, Robert W. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3058
ANNARE L. LOUBSER,
Plaintiff-Appellant,
v.
ROBERT W. THACKER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 4:04-CV-75 AS—Allen Sharp, Judge.
____________
SUBMITTED DECEMBER 5, 2005—DECIDED MARCH 8, 2006
____________
Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Annare Loubser brought this
federal civil rights suit under 42 U.S.C. § 1983 against more
than 40 individuals who she alleges conspired to defraud
her by corrupting her divorce proceedings; those pro-
ceedings ended in a judgment that, she claims, deprived her
of property to which she was entitled. She brought this suit
after the state appellate court had affirmed the judgment in
the divorce proceedings. The district court dismissed the
suit on the pleadings as barred by two judge-made doc-
trines: Rooker-Feldman, which denies the lower federal courts
the authority to overturn a state court judgment, and the
2 No. 05-3058
“domestic relations exception,” a judge-made doctrine that
denies to the federal courts jurisdiction over domestic-
relations matters such as divorce on the theory that the
reference to “the judicial Power” in Article III of the Consti-
tution was intended to exclude the powers exercised by
Britain’s ecclesiastical courts, which, rather than the com-
mon law courts at Westminster, exercised jurisdiction in
such matters. (Because the judgment in the divorce suit was
civil rather than criminal, the doctrine of Heck v. Humphrey
is clearly inapplicable. See, e.g., Wilkinson v. Dotson, 125 S.
Ct. 1242, 1248 (2005).)
Loubser does not have a lawyer. Although her self-
authored complaint is quite well written, it is sprawling—71
pages long divided into 115 paragraphs—disorganized, and
repetitious. Worse, it has a paranoid quality, with some of
the allegations bordering on, perhaps crossing over into, the
fantastic. The complaint charges that over a three-year
period beginning in August of 2001, state judges and court
reporters, Loubser’s own lawyers, her former husband,
building contractors, the owner of a jewelry store, and
numerous friends and relatives of the other conspirators,
conspired to destroy her financially and drive her out of the
country by manipulating the divorce proceedings to deny
her due process of law, and that they did all this because
they consider her a “fucking South African Bitch who makes
too much Fucking Money” as a physical therapist. One of
the defendants, she charges, destroyed title documents
essential to her divorce proceedings; two of the defendants
effaced all records of the existence of a related case; her own
lawyers, along with court reporters, altered transcripts; her
lawyers refused to present crucial evidence; the judge
presiding over the divorce proceeding consorted improperly
with Loubser’s ex-husband and a number of his witnesses,
one of whom touched the judge and “rubbed his belly” (at
No. 05-3058 3
a party, though, not in court). Among still other allegations,
Loubser charges that the judge joked about golf with a
witness while he was testifying and the court reporter
deliberately deleted the exchange from the transcript, and
that Loubser’s ex-husband said to the judge, “goodbye
judgee wudgee, I will see you around town.” In support
of the belly-rubbing allegation, Loubser has included in
the appendix to her opening brief in this court photo-
graphs of the incident, but the photographs do not de-
pict anybody’s belly being rubbed.
It is highly improbable that the suit has any merit, but the
allegations are not so fantastic that the suit can be dismissed
out of hand, as being obviously frivolous, as in Lee v.
Clinton, 209 F.3d 1025 (7th Cir. 2000). The setting for the
alleged conspiracy is White County, Indiana, a rural county
with a population of only 25,000. The county seat,
Monticello, where the divorce proceedings were held,
has a population of only 5,500. No doubt there is much
less formality than attends litigation in big cities and
much more social interaction among the judges, lawyers,
and other members of the community. Loubser has proba-
bly mistaken innocent interactions for a vast conspiracy. But
this is not a case on the fantasy level of Lee, where the
complaint “charg[ed] the United States and China with a
conspiracy to ‘bio-chemically and bio-technologically in-
fect and invade’ ” various people including Lee “with a
mind reading and mental torture device” called “MATRET,”
to elude which “Lee claim[ed] to have developed a variety
of space technologies, …including an email system and
nanny services, that [would] enable the victims of MATRET
to relocate to MATRET-free planets.” The reference to
extraterrestrial nanny service was the clincher.
The grounds on which the district court dismissed
Loubser’s suit were erroneous. The claim that a defendant
4 No. 05-3058
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 Rooker-Feldman 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. This is in general rather than
in every case, and maybe Indiana law would have enabled
Loubser to present evidence in her appeal, but this issue has
not been addressed. Moreover, the relief she seeks would go
far beyond merely modifying the division of property
decreed by the divorce court. She wants damages for the
harassment to which the defendants allegedly subjected her
en route to the judgment, including efforts to destroy her
business as a physical therapist and drive her out of the
country.
This is not to say that Loubser had no possible state
remedies, including bringing a postjudgment challenge to
the decree as having been procured by fraud and complain-
ing about judicial misconduct to the Indiana Judicial
Nominating Commission, though the latter course would
not have gotten her the monetary damages that she is
seeking. But Rooker-Feldman does not impose a duty to
exhaust judicial and administrative remedies before pursu-
ing a federal civil rights suit. Except in prisoner suits, there
is no requirement that a plaintiff in a suit under 42 U.S.C. §
1983 exhaust state remedies. E.g., Wilkinson v. Dotson, supra,125 S. Ct. at 1246; Patsy v. Board of Regents, 457 U.S. 496, 501
(1982). And, as we pointed out, merely modifying the
divorce decree would not give Loubser all the relief she
seeks in this lawsuit.
No. 05-3058 5
The domestic-relations exception to federal jurisdiction is
not applicable to this case either. A federal court cannot
grant or annul a divorce, but that is not what Loubser is
seeking.
Of course her claims against the judges are barred; she
is complaining about their judicial conduct, and they
have absolute immunity from such damages claims. E.g.,
John v. Barron, 897 F.2d 1387, 1391-92 (7th Cir. 1990); J.B.
v. Washington County, 127 F.3d 919, 925 (10th Cir. 1997). The
other official defendants, the court reporters, do not. Antoine
v. Byers & Anderson, Inc., 508 U.S. 429, 436-37 (1993);
McCullough v. Horton, 69 F.3d 918 (8th Cir. 1995) (per
curiam). Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991) (per
curiam), notes a circuit split on this issue, but the split
was resolved in the Antoine case in favor of liability.
Not that court reporters are liable in a section 1983 case
for innocent errors, even if negligent. Section 1983 claims
cannot be founded on negligence. Daniels v. Williams, 474
U.S. 327, 330 (1986); Lewis v. Anderson, 308 F.3d 768, 773 (7th
Cir. 2002); Upsher v. Grosse Point Public School System, 285
F.3d 448, 453-54 (6th Cir. 2002). But if, as the complaint
alleges, the reporters deliberately altered a transcript as part
of a conspiracy to defraud a litigant, they can, lack-
ing absolute immunity, be held liable. The defendants
do not argue otherwise.
The remaining issue is whether the allegations of con-
spiracy are sufficiently informative to survive dismissal. The
issue is close. Although conspiracy is not something that
Rule 9(b) of the Federal Rules of Civil Procedure requires be
proved with particularity, and so a plain and short state-
ment will do, Hoskins v. Poelstra, 320 F.3d 761 (7th Cir. 2003);
Walker v. Benjamin, 293 F.3d 1030, 1039 (7th Cir. 2002);
Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002); see
6 No. 05-3058
generally Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512
(2002); Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993), it differs from
other claims in having a degree of vagueness that makes a
bare claim of “conspiracy” wholly uninformative to the
defendant. Federal pleading entitles a defendant to notice of
the plaintiff’s claim so that he can prepare responsive
pleadings. Fed. R. Civ. P. 8(a); Doe v. Smith, 429 F.3d 706, 708
(7th Cir. 2005); Lotierzo v. A Woman’s World Medical Center,
Inc., 278 F.3d 1180, 1183 (11th Cir. 2002). That is why courts
require the plaintiff to allege the parties, the general pur-
pose, and the approximate date of the conspiracy. Walker v.
Thompson, supra, 288 F.3d at 1007-08; Ryan v. Mary Immacu-
late Queen Center, 188 F.3d 857, 858-60 (7th Cir. 1999).
But this information can be found in the plaintiff’s
complaint, though in disjointed form. The parties to the
conspiracy are clearly identified; the conspiracy is alleged to
have begun in August of 2001 and to have continued for at
least three years; and its purpose—to deprive the plaintiff of
her property and livelihood by corrupting her divorce
proceeding—is clearly if repetitiously stated as well.
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). The
dates on which particular defendants joined the conspiracy
are not alleged, but that is not the kind of information that
a plaintiff can be expected to have when she files her
complaint.
What is true is that the complaint is confusing. The district
court would have been within its rights in dismissing it on
that ground, e.g., Fidelity National Title Ins. Co. v. Intercounty
National Title Ins. Co., 412 F.3d 745, 749 (7th Cir. 2005);
Lindell v. McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003); Davis
v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001); In re
Westinghouse Securities Litigation, 90 F.3d 696, 703-04 (3d Cir.
No. 05-3058 7
1996); Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995),
but with leave to replead. That is not what the court did; it
dismissed with prejudice, which would have been proper on
grounds of confusion only after the plaintiff had demon-
strated her inability to file a lucid complaint, which she has
not done. True, this was her second, amended complaint,
but the first was not denied on the ground that it was
confusing. Nor was confusion among the court’s grounds
for the dismissal of the second complaint. We should cut her
a bit of slack, since she is pro se.
The judgment is affirmed with respect to the dismissal
of the judges as defendants, but is otherwise vacated and
the case remanded for further proceedings consistent
with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH DIRECTIONS.
SYKES, Circuit Judge, concurring in part, dissenting in part.
I agree that Loubser’s suit is not barred by the Rooker-
Feldman doctrine or the “domestic relations exception” to
federal jurisdiction. I also agree that the state court
judges have absolute immunity and the dismissal of the
claims against them should be affirmed on that alterna-
tive basis. I cannot agree, however, with the majority’s
decision to reverse the judgment dismissing the claims
against the remaining defendants, and to that extent must
respectfully dissent.
Annare Loubser received an unfavorable judgment in
what apparently were highly protracted and contentious
8 No. 05-3058
divorce proceedings in Indiana state court. She appealed the
decision, but the Indiana Court of Appeals affirmed and the
Indiana Supreme Court denied review. Loubser then
brought this federal suit under 42 U.S.C. § 1983 against more
than 40 defendants—her former husband; various and sundry
people involved in the state divorce court proceedings,
including two trial judges, two court reporters, several
attorneys and a paralegal, numerous witnesses, and some of
their friends and relatives; and the staff counsel to the
Indiana Judicial Qualifications Commission.1 Loubser
alleged that the defendants conspired to violate her due
process and equal protection rights in her divorce case
because of her South African heritage and for other corrupt
reasons.
Loubser’s 71-page amended complaint is a rambling
and often incoherent statement of grievances related to
her divorce case, presented in a stream-of-consciousness
narrative. It has the paranoid and borderline fantastic
quality described in the majority opinion. Among other
injuries, Loubser claims the defendants’ actions have
deprived her of property; kept her in a state of “involuntary
servitude”; impeded her “pursuit of happiness”; and
interfered with her “liberty to live where she chose [sic] to,”
her liberty to have children, and her “liberty to work where
she wanted to and to chose [sic] how much she wants to
work.” She made an unusually precise damages demand,
seeking $1,169,850.70 in compensatory damages and
$3,509,552 in punitive damages.
The district court dismissed the case for lack of jurisdic-
tion under both the Rooker-Feldman doctrine and the domes-
1
She also sued the United States but voluntarily dismissed that
claim.
No. 05-3058 9
tic relations exception to federal jurisdiction. The court held
that Loubser was essentially attempting to undo the results
of her state court divorce case.
Under the Rooker-Feldman doctrine the lower federal
courts lack jurisdiction to review or modify state court
civil judgments. Rooker v. Fid. Trust Co., 263 U.S. 413, 416
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476
(1983); Schmitt v. Schmitt, 324 F.3d 484, 486 (7th Cir. 2003).
As the Supreme Court recently clarified, the doctrine applies
to “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.” Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1521-22
(2005).
There is no question that Loubser’s amended complaint is
an attack on the proceedings in her state court divorce case,
alleging due process and equal protection violations; the
district court’s conclusion that Rooker-Feldman blocked
federal jurisdiction was thus quite understandable. But this
court has held that Rooker-Feldman does not prevent litigants
from seeking a federal remedy for alleged violations of their
constitutional rights where “the violator so far succeeded in
corrupting the state judicial process as to obtain a favorable
judgment.” Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir.
1995). To the extent that Loubser is contending she was
denied the right to be judged by an uncorrupted tribunal
and seeks damages for the resulting harm, Nesses holds that
Rooker-Feldman does not apply. It seems to me that the
Nesses exception could consume the Rooker-Feldman rule if
interpreted too broadly, but I do not quarrel with its
applicability here.
10 No. 05-3058
Nor do I disagree with the majority’s conclusion that
the domestic relations exception does not apply. The
exception prohibits federal courts from hearing custody,
divorce, and alimony disputes or any related claims that
arise from these domestic relations matters. Friedlander v.
Friedlander, 149 F.3d 739, 740 (7th Cir. 1998); Allen v. Allen,
48 F.3d 259, 262 (1995). I agree that Loubser’s claims of
conspiracy are not domestic relations matters.
This common ground brings up the alternative arguments
to affirm the judgment, and here I part company with the
majority in certain significant respects. The amended
complaint targets several categories of defendants. The first
includes the judges, Robert Thacker and Rex Kepner, who
are immune from suit. See Dawson v. Newman, 419 F.3d 656,
660 (7th Cir. 2005). I agree with the majority’s decision to
affirm the dismissal of the case against them.
The next category includes the court reporters who, unlike
the judges, do not enjoy absolute immunity from suit.
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436-37 (1993).
Loubser alleges that the reporters altered portions of the
transcript in her divorce case. But a “plaintiff does not have
a constitutional right to a totally accurate transcript of his .
. . trial.” Tedford v. Hepting, 990 F.2d 745, 747 (3d Cir. 1993).
A plaintiff’s constitutional rights are violated only if the
“inaccuracies in the transcript adversely affected the
outcome” of the proceeding. Id. See also Colyer v. Ryles,
827 F.2d 315, 316 (8th Cir. 1987) (explaining that a civil
complaint for damages was frivolous where the plaintiff
was not prejudiced by an allegedly altered transcript).
Loubser does not claim that the alleged alterations in the
transcript adversely affected the outcome of her divorce
case; there are no further allegations against the court
reporters. Loubser has not alleged an actionable constitu-
No. 05-3058 11
tional violation by the court reporters, and I would affirm
the dismissal of the claims against them.
The allegations against the staff counsel for the Indi-
ana Judicial Qualifications Commission are wholly insuf-
ficient to state a constitutional claim. The amended com-
plaint alleges that the attorney, Meg Babcock, was “in-
formed . . . by mail” that Thacker “used his knowledge from
outside of the court room to decide the division of assets in
the court room” and “turned a blind eye to it.” Loubser has
not alleged that Babcock personally participated in a
constitutional violation, nor has she alleged any proper
alternative basis for liability on the part of the attorney. See
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001);
Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). I
would affirm the dismissal of the claim against Babcock.
Finally, the largest category of defendants consists of the
numerous private actors: Loubser’s ex-husband; the at-
torneys and the paralegal; the witnesses in the divorce
case; some of their friends and relatives. The allegations
about the conduct of these defendants comprise almost
the entire amended complaint. Section 1983 can reach
private citizens only where a plaintiff adequately alleges
that they conspired with a state actor to deprive that
plaintiff of a constitutional right. See Brokaw v. Mercer
County, 235 F.3d 1000, 1016 (7th Cir. 2000). Specifically, a
plaintiff must allege in her complaint that: “(1) a state
official and private individual(s) reached an understand-
ing to deprive the plaintiff of his constitutional rights,
and (2) those individual(s) were willful participants in
joint activity with the State or its agents.” Id. (internal
quotations and citation omitted). A generalized allegation of
conspiracy that fails to identify the timing, scope, and terms
of the agreement between the private person and one or
12 No. 05-3058
more state actors will not satisfy even the minimal require-
ments of notice pleading under FED. R. CIV. P. 8. See Ryan v.
Mary Immaculate Queen Ctr., 188 F.3d 857, 860 (7th Cir. 1999).
For all its length and meandering density, the amended
complaint contains only generalized allegations of con-
spiracy. Although Loubser has identified a basic time frame
and conspiratorial purpose, she has not alleged that each of
the private citizen defendants entered into an agreement
with one or more state actors to deprive her of her constitu-
tional rights, nor has she clearly alleged their individual
participation in joint activity with state agents. To be sure,
the amended complaint purports to describe some of the
activities of some of these defendants during the course of
the divorce case, but it does so mostly incoherently. The
more readily decipherable allegations do not assert the
existence of an agreement or understanding as between each
of the individual private citizen defendants and a state
actor. Instead, Loubser has pleaded a jumbled collection of
alleged misdeeds by some of the private citizen defendants
during the state court divorce proceedings, together with a
generalized allegation of conspiracy. This is insufficient to
state a § 1983 claim against the private citizen defendants.
As noted by the majority, the purpose of federal plead-
ing requirements is to provide notice to the defendant
to facilitate the preparation of a response. But another
equally important purpose is “to allow the court to deter-
mine at the outset of the litigation, before costly discovery is
undertaken, whether the plaintiff has any tenable theory or
basis of suit, so that if he does not the case can be got rid of
immediately without clogging the court’s docket and
imposing needless expense on the defendant.” Ryan, 188
F.3d at 860. Loubser’s amended complaint does not ade-
quately allege a tenable basis for a § 1983 civil
No. 05-3058 13
rights conspiracy claim against the private citizen defen-
dants.2 We should not put them to the needless expense
of continuing to defend against it, nor should we burden the
lower court by returning a meritless case to its docket. I
would affirm the judgment dismissing the case in its
entirety.
2
Leave to replead is not warranted here. The amended com-
plaint is Loubser’s second try at pleading a civil rights conspiracy
by the defendants; she has not succeeded in filing a short, plain,
and actionable claim.
14 No. 05-3058
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-06