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Date: 06-27-2018

Case Style:

Robert M. Kowalski v. Shauna Boliker

Northern District of Illinois Courthouse - Chicago, Illinois

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Case Number: 17-1952

Judge: Wood

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Pro Se

Defendant's Attorney: Michael D. Arnold

Description: Robert Kowalski is dissatisfied with his
treatment by judges and sheriff’s personnel during his divorce
proceedings. He especially accuses an Illinois judge,
Shauna Boliker, of engaging in extrajudicial efforts designed
to prejudice the state court against him and in favor of her best
2 No. 17‐1952
friend, Kowalski’s wife. While Kowalski’s allegations are troubling,
in the end we conclude that the district court was correct
to dismiss his case.
I
Kowalski and his former spouse have been waging a divorce
and child‐custody battle in the Circuit Court of Cook
County, Illinois. Believing that several state judges and officials
have deprived him of a fair proceeding, Kowalski filed
this suit under 42 U.S.C. §§ 1983 and 1985. The defendants include
Judges Shauna Boliker and Grace Dickler, both of the
Circuit Court, as well as the Sheriff of Cook County and two
members of his staff. (We refer collectively to the sheriff and
his deputies as the sheriff, since no distinctions between them
are pertinent to this case.)
Judge Boliker, whom Kowalski describes as his wife’s
“BFF” (i.e., her “best friend forever”), allegedly engaged in a
series of improper communications with Judge David Haracz,
who was originally assigned to Kowalski’s domestic‐relations
case. The first incident occurred during a show‐cause hearing
held after Judge Boliker refused to comply with a subpoena
for her deposition by Kowalski. At the hearing,
Judge Boliker’s counsel slipped Judge Haracz a “Secret Letter”
from Judge Boliker to the sheriff. The letter, which Kowalski
later obtained, described Kowalski as a security threat.
Kowalski believes that Judge Boliker had several pernicious
motives for writing the letter: to deprive Kowalski of his attorney
identification card; to produce evidence harmful to
Kowalski in his domestic‐relations case; and to justify her
own improper interference in Kowalski’s divorce.
No. 17‐1952 3
At the hearing, Judge Boliker’s attorney denigrated Kowalski
by describing him as dangerous, accusing him of habitually
staring at the judge in her courtroom, and noting that
the judge had posted Kowalski’s picture as a warning notice.
Kowalski also accuses Judge Boliker of submitting a “courtesy
letter” with these warnings to Judge Haracz. (This may be the
same as the “Secret Letter.”) Finally, when Kowalski moved
for a substitution of judges based on these ex parte communications,
Judge Boliker’s counsel submitted an affidavit to the
court, presumably on Judge Boliker’s behalf, opposing the
substitution. The affidavit reiterated Judge Boliker’s contentions
that Kowalski posed a security risk, had sent her threatening
emails, had stared at her while on the bench, and had
stalked her. It also confirmed that Judge Boliker circulated
Kowalski’s photo and displayed it in her courtroom as a
warning.
Judge William S. Boyd ultimately replaced Judge Haracz
in the underlying case. Kowalski accuses Judge Dickler, the
Presiding Judge of the court’s Domestic Relations Division, of
prejudicing Judge Boyd. Kowalski’s attorney had written to
Judge Dickler, asking her to send him a “courtesy copy” of
Kowalski’s citation to remove his children’s guardian ad litem.
The letter requested that Judge Dickler refer the citation “to
the body responsible for the appointment list for the guardian
ad litem.” After Kowalski received no response, his attorney
complained to Timothy Evans, Chief Judge of the Circuit
Court, who referred the matter back to Judge Dickler.
Judge Dickler responded to Kowalski, copying Judge Boyd
and all interested parties on the response. Judge Dickler described
Kowalski’s letter as “an ex parte communication, essentially
seeking that [Judge Dickler] exercise [her] administrative
authority to rule upon a pending motion instead of …
4 No. 17‐1952
the … assigned judge … without notice” to concerned parties.
Judge Dickler also wrote that the letter to Chief Judge Evans
had made “baseless and false allegations impugning
[Judge Dickler’s] integrity which [she] w[ould] not dignify
with a response.”
Kowalski’s complaint also raises claims against the sheriff.
He focuses on the sheriff’s refusal to renew his attorney identification
card—which provides security‐free access to the
courthouse—and the sheriff’s failure to comply with a subpoena
duces tecum in Kowalski’s divorce case to produce documents
related to Judge Boliker’s alleged machinations
against Kowalski. Kowalski’s briefs frame these actions as
part of a broader effort to deprive him of his federal constitutional
right to an impartial judge. He is apparently asserting
that the sheriff was working to bolster Judge Boliker’s claims
that Kowalski posed a danger out of malice toward Kowalski
and a desire to cover up Judge Boliker’s alleged misconduct.
The district court dismissed Kowalski’s complaint. Unfortunately,
it did so before the date on which Kowalski’s response
to the sheriff’s motion to dismiss was due and before
having received that response. The court held that absolute
judicial immunity barred Kowalski’s claims against the
judges. It also ruled that Judge Boliker could not be held liable
for her communications with the court because she was a witness,
Kowalski having subpoenaed her (unsuccessfully) to
testify. As for the sheriff, the court concluded that he had not
violated Kowalski’s due process rights by denying the identification
card, because Kowalski had neither a liberty nor
property interest in the card. The court also opined that the
Rooker‐Feldman doctrine barred Kowalski’s claim that the
No. 17‐1952 5
sheriff had violated his rights by failing to respond to his subpoena
because the state court had quashed it. Finally, the
court suggested in the alternative that it lacked jurisdiction to
hear the entire case because of the domestic‐relations exception
to federal jurisdiction.
II
We assess de novo a suit’s dismissal for failure to state a
claim or for want of subject‐matter jurisdiction. Gogos v. AMS
Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th Cir. 2013); Joyce v.
Joyce, 975 F.2d 379, 382 (7th Cir. 1992). When doing so, we may
affirm a dismissal on any ground supported by the record.
Sykes v. Cook Cnty. Circuit Court Probate Div., 837 F.3d 736, 740
(7th Cir. 2016); Griffin v. Summerlin, 78 F.3d 1227, 1230 (7th Cir.
1995). Three questions are before us with respect to jurisdiction:
whether we lack appellate jurisdiction because the district
court’s dismissal was without prejudice; whether the district
court lacked subject‐matter jurisdiction under the Rooker‐
Feldman doctrine, see Rooker v. Fidelity Tr. Co., 263 U.S. 413
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
and whether it lacked subject‐matter jurisdiction because of
the so‐called domestic‐relations exception to federal competence.
A
We first consider whether lack of finality precludes appellate
jurisdiction. A plaintiff generally may not appeal unless
the district court has dismissed his case with prejudice. Taylor‐
Holmes v. Office of Cook Cnty. Pub. Guardian, 503 F.3d 607,
609–10 (7th Cir. 2007); Kaplan v. Shure Bros., Inc., 153 F.3d 413,
417 (1998); see also 28 U.S.C. § 1291. That did not happen here.
6 No. 17‐1952
The district court stated that Kowalski’s complaint was dismissed
“without prejudice” and invited Kowalski to refile “in
the future” if he obtained “facts that support any of the
claims” he had made. At first glance, that statement appears
fatal to Kowalski’s appeal. Moreover, while we permit appellants
to avoid this jurisdictional bar by stipulating that they
will not refile their case, see Arrow Gear Co. v. Downers Grove
Sanitary Dist., 629 F.3d 633, 637 (7th Cir. 2010), Kowalski declined
to do so during oral argument.
Nonetheless, the absence of a dismissal with prejudice
does not always impede appellate review. Our fundamental
concern is that the district court’s order “ends the suit so far
as the district court is concerned.” Taylor‐Homes, 503 F.3d at
610. Thus, “if there is no amendment [a plaintiff] could reasonably
be expected to offer to save the complaint” following
its dismissal, we may treat the dismissal as final and permit
an appeal. Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005).
Here, the district court entered judgment in favor of the defendants,
signaling that it had finished with Kowalski’s case.
While it invited Kowalski to file a new suit in the future if he
obtained new evidence that supported his claims, it dismissed
his complaint on legal grounds that make it difficult to imagine
what kind of evidence it had in mind. Kowalski could not
tweak his complaint and refile it. Cf. Arrow Gear Co., 629 F.3d
at 637. In reality, the invitation to refile was illusory. The district
court was finished with this case, and so our appellate
jurisdiction is secure.
Moreover, a dismissal for want of subject‐matter jurisdiction
is necessarily without prejudice because it does not preclude
pursuit of the action in a different forum. T.W. by Enk v.
Brophy, 124 F.3d 893, 898 (7th Cir. 1997). Such a dismissal is,
No. 17‐1952 7
however, appealable. S. Austin Coal. Cmty. Council v. SBC
Commc’ns Inc., 191 F.3d 842, 844 (7th Cir. 1999). Therefore, to
the extent that the district court’s reasons for dismissing Kowalski’s
suit implicated its own subject‐matter jurisdiction, we
are free to entertain his appeal.
B
The first theory relating to subject‐matter jurisdiction that
the district court invoked was the Rooker‐Feldman doctrine.
Rooker‐Feldman is “confined,” however, to “cases brought by
state‐court losers complaining of injuries caused by statecourt
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., 544 U.S. 280, 284 (2005). It does not apply independently
to interlocutory orders. TruServ Corp. v. Flegles, Inc.,
419 F.3d 584, 591 (7th Cir. 2005). But see Harold v. Steel, 773
F.3d 884, 886 (7th Cir. 2014) (describing the issue as undecided
in this circuit). In the present case, the state court had not rendered
a judgment before the district court proceedings began.
Therefore, Rooker‐Feldman does not bar this case.
Moreover, even if Rooker‐Feldman applied to interlocutory
orders, the doctrine still would have no bearing on Kowalski’s
appeal because he has not asked us to reject any such order.
Kowalski has disclaimed any attempt to challenge or circumvent
the state court’s decision to quash Kowalski’s subpoena
of the sheriff. He seeks not information from those defendants
but rather damages for interference with his state proceeding.
8 No. 17‐1952
C
That leaves the domestic‐relations exception to federal jurisdiction.
Although the present dispute arises out of a divorce
and custody proceeding, that alone is not enough to
trigger that exception. The exception covers a “narrow range
of domestic relations issues involving the granting of divorce,
decrees of alimony,” and child custody orders. Ankenbrandt v.
Richards, 504 U.S. 689, 701–02 (1992). It is “materially identical”
to the probate exception. Struck v. Cook Cnty. Pub. Guardian,
508 F.3d 858, 859 (7th Cir. 2007). These exceptions apply
to both federal‐question and diversity suits. Jones v. Brennan,
465 F.3d 304, 306–07 (7th Cir. 2006) (probate exception); Allen
v. Allen, 48 F.3d 259, 262 n.3 (7th Cir. 1995) (domestic relations
exception). Both are construed narrowly, with a focus on the
need to prevent federal courts from “disturb[ing] or affect[
ing] the possession of property in the custody of a state
court.” Marshall v. Marshall, 547 U.S. 293, 311 (2006) (quoting
Markham v. Allen, 326 U.S. 490, 494 (1946)). They “do[] not bar
federal courts from adjudicating matters outside those confines.”
Id. at 312.
The Supreme Court held in Marshall that a claim of tortious
interference with expectancy did not trigger the probate
exception. Id. at 314. It stressed that the litigation “s[ought]
an in personam judgment … not the probate or annulment of a
will” and, therefore, would not “reach a res in the custody of
a state court” or determine a matter about which probate
courts have particular expertise. Id. at 312. Likewise, in Lloyd
v. Loeffler, we concluded that a suit for tortious interference
with child custody and conspiracy was not barred by the domestic‐
relations exception. 694 F.2d 489, 490 (7th Cir. 1982).
Marshall and Lloyd point the way for our case. Kowalski seeks
No. 17‐1952 9
an in personam judgment against persons who allegedly interfered
with his rights in a tortious manner. He does not seek to
alter an in rem custody award or to undo a divorce decree. The
fact that the alleged interference with Kowalski’s rights occurred
during a family‐law proceeding does not require a different
result. Kowalski complains of alleged attempts to curtail
his procedural rights in family court, but he does not attack
any application of Illinois family law.
Finally, Kowalski’s suit differs fundamentally from the superficially
similar case of Jones v. Brennan, 465 F.3d 304 (7th
Cir. 2006). In Jones, the plaintiff alleged a conspiracy among
probate judges and guardians “to deprive her of property
without due process of law in the course of probate proceedings,”
which were held first to manage her father’s estate during
his senility and then to distribute it following his death.
Id. at 305. The guardians allegedly had ex parte communications
with the judges, mismanaged the estate, engaged in selfdealing,
illegally searched the plaintiff’s belongings, interfered
with her relationship with her father, and hastened the
father’s death through neglect. Id. The judge had denied the
plaintiff notice and a hearing before appointing the problematic
guardians. Id. Although we permitted some tort claims
against the guardians for breach of their fiduciary duty to go
forward, the probate exception applied to the extent that
“maladministration of her father’s estate by the … probate
court” undergirded the plaintiff’s claims. Id. at 307 (emphasis
added). Thus, the plaintiff could not sue the guardians for depriving
her of property without due process if the relevant
acts were undertaken “in the course of administering the estate.”
Id. Nor could the plaintiff complain that the guardians
deprived her of a “liberty interest in her relationship with her
10 No. 17‐1952
father” if that deprivation was caused by a court order designed
to prevent her “from interfering with the probate proceedings.”
Id. at 308. Finally, she could not challenge their illegal
search if it was conducted pursuant to a warrant issued
by the probate court to facilitate administration of the estate.
Id.
In contrast to the situation in Jones, Kowalski does not
challenge any action taken by the court and its officers in the
course of adjudicating his marriage or custody action. He
complains only about outside actors who allegedly interfered
in his case. We need not pass on the state court’s application
of family law in order to adjudicate Kowalski’s case. The district
court had jurisdiction over the case, and so we may turn
to the merits.
III
The district court dismissed Kowalski’s complaint before
the date it had set for him to respond to the sheriff’s motion
to dismiss the claims against them. It should not have done
so.
When a court dismisses a complaint “sua sponte, it [i]s required
to give [the plaintiff] notice of its intent to do so and
an opportunity to respond.” Stewart Title Guar. Co. v. Cadle
Co., 74 F.3d 835, 836 (7th Cir. 1996). A failure to follow these
steps deprives the litigant of his day in court, denies the judge
the benefit of the litigant’s analysis, and “tend[s] to transform
the district court into ‘a proponent rather than an independent
entity.’” Id. (quoting Horn v. City of Chicago, 860 F.2d 700,
703 n.6 (7th Cir. 1988)). Although we have recognized a narrow
exception for dismissals of certain patently frivolous attempts
to invoke federal jurisdiction, English v. Cowell, 10 F.3d
No. 17‐1952 11
434, 437 (7th Cir. 1993), Kowalski’s case did not fall within
that narrow class of suits. The fact that the district court did
not act sua sponte, but instead acted upon defendants’ motions
to dismiss and with the benefit of defendants’ arguments, is
even more troubling. The dismissal of a complaint before the
deadline set for a plaintiff’s response is normally, and was
here, an error, Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918,
924 (7th Cir. 1992).
A premature dismissal often will require a remand to provide
the plaintiff with an opportunity to develop and present
a defense of his complaint to the district court. See Stewart Title
Guar. Co., 74 F.3d at 836–37. Nonetheless, the normal rules
of harmless error apply. See FED. R. CIV. P. 61; English, 10 F.3d
at 438; Stewart Title Guar. Co., 74 F.3d at 837; Uni*Quality, Inc.,
974 F.2d at 924. A premature ruling may be harmless “when
the district court is found to have entertained the non‐movants’
arguments on a prior or subsequent motion.” English,
10 F.3d at 438. Likewise, the district court may neutralize its
error if it has “carefully considered” a plaintiff’s “detailed motion
to amend the judgment and for leave to amend its complaint”
and the plaintiff had enjoyed “ample opportunity to
make its arguments both in the district court” and on appeal.
Uni*Quality, Inc. 974 F.2d at 924.
Although Kowalski did not have another opportunity to
present his position to the district court, we do know precisely
what Kowalski intended to argue because he timely filed his
brief after the district court had ruled. That brief is part of the
record, and its arguments match those that Kowalski has presented
on appeal. No one has argued that Kowalski has
waived any of these arguments nor would we accept such an
argument given the course of events. Thus, we can consider
12 No. 17‐1952
all of Kowalski’s arguments as part of our de novo assessment
of the legal sufficiency of his complaint. The district court’s
premature ruling was, therefore, harmless.
IV
Turning to the merits of Kowalski’s underlying complaint,
we begin by addressing whether absolute immunity precludes
Kowalski’s suit against either Judge Boliker or
Judge Dickler. We conclude that Judge Boliker cannot claim
the protection of judicial immunity but that Judge Dickler’s
alleged actions fall within its scope. We reject Judge Boliker’s
assertion of witness immunity.
A
Judge Boliker opens with the assertion that she is entitled
to judicial immunity because “she was acting to ensure the
security and integrity of the court.” That strikes us as a step
too far. Although judicial immunity is broad, it is not limitless.
A judge does not enjoy immunity if he or she is acting in
the “clear absence of all jurisdiction,” Stump v. Sparkman,
435 U.S. 349, 357 (1978) (quoting Bradley v. Fisher, 80 U.S. 335,
351 (1871)), rather than simply in “excess of [the judge’s] authority,”
id. at 356. A judge is also amenable to suit for nonjudicial
acts. Id. at 360–62. Both exceptions to immunity apply
here.
First, Judge Boliker acted in the clear absence of jurisdiction.
We assume that she may have immunity in cases arising
out of security measures she took in her own court or in connection
with one of her own cases. Judge Boliker, however,
gratuitously inserted herself into a case proceeding before another
judge. She had no authority to control that colleague’s
case. That is a real problem for her: we have looked for at least
No. 17‐1952 13
a modicum of authority over matters arising from a case as a
prerequisite for judicial immunity.
For example, in Dellenbach v. Letsinger, a judge accused of
ex parte attempts to block an appeal pending the purchase of
duplicate trial transcripts had already entered final judgment
and therefore had technically lost jurisdiction to the appellate
court. 889 F.2d 755, 757, 760 (7th Cir. 1989). In nonetheless affording
the judge immunity, we emphasized that he had at
most acted in excess of his jurisdiction by blocking the appeal
in “a criminal matter tried in his court.” Id. at 760. He had at
least had jurisdiction and could reasonably believe that he retained
some control over the case. Id. The case of Bradley v.
Fisher, 80 U.S. 335 (1871), also helps to illustrate where the
lines are drawn. In Bradley, the attorney for a criminal defendant
accosted his client’s judge after trial recessed one day,
complaining about comments the judge had made from the
bench. After the jury was discharged, the judge disbarred the
offending attorney, who then sued the judge. The Supreme
Court held that the judge’s action had been undertaken “in
the lawful exercise and performance of his authority and duty
as [the] presiding justice.” Id. at 346–47. The judge thus enjoyed
immunity for his actions. In contrast to Dellenbach and
Bradley, Kowalski’s complaint against Judge Boliker centers
on her interference in a case to which she was never assigned
and over which she had no responsibility. Judge Boliker cannot
assert judicial immunity over matters so far removed from
matters under her jurisdiction.
Judge Boliker’s intervention in Kowalski’s trial was likewise
an unprotected non‐judicial act. Judicial acts are distinct
from the “administrative, legislative, or executive functions
that judges may on occasion be assigned by law to perform.”
14 No. 17‐1952
Forrester v. White, 484 U.S. 219, 226 (1988). Selection of jurors,
promulgating rules of professional conduct, enforcement of
those rules, and personnel decisions all fall on the non‐judicial
side of this divide. Id. at 228–29. In assessing the judicial nature
of an action, we consider “whether it is a function normally
performed by a judge” and the “expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity.”
Stump, 435 U.S. at 362. We have also asked whether
the act “involves the exercise of discretion or judgment, or is
rather a ministerial act which might as well have been committed
to a private person as to a judge.” Dawson v. Newman,
419 F.3d 656, 661 (7th Cir. 2005) (quoting Lowe v. Letsinger, 772
F.2d 308, 312 (7th Cir. 1985)). Finally, we have cautioned
against liberally categorizing acts as judicial, requiring that
they “involve the judicial process so that a fear exists that freedom
of judicial decisionmaking may be stifled.” McMillan v.
Svetanoff, 793 F.2d 149, 154 (7th Cir. 1986). Judge Boliker’s interference
in Kowalski’s trial does not qualify as judicial from
any of these perspectives.
Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980), provides
a helpful analogy to Kowalski’s case. Lopez held that a
judge acted judicially despite having maliciously, corruptly,
and illegally arraigned, convicted, and sentenced his former
tenant in an irregular court consisting only of himself. Id. at
1234. But the judge was not entirely off the hook. To the extent
that he had acted as a prosecutor—by selecting the charge,
preparing a “Notice to Appear,” securing the preparation of
a complaint form, forging a guilty plea and jury‐trial waiver,
and then presenting them to himself as judge—he could not
claim judicial immunity. Id. at 1235. Judge Boliker’s intervention
in Kowalski’s case looks more like that of a party or investigator
than a judge. She was a potential witness in the
No. 17‐1952 15
case, and her lawyer actively tried to thwart Kowalski’s motion
for substitution. These actions had nothing to do with
Judge Boliker’s judicial decision‐making function. She was allegedly
acting as an advocate for her close friend.
Judge Boliker cites only one case, Barrett v. Harrington, 130
F.3d 246 (6th Cir. 1997), to support her argument to the contrary.
In Barrett, a judge received immunity for writing a letter
to prosecutors that triggered the criminal investigation of a
litigant. 130 F.3d at 259. There the similarities end. The Sixth
Circuit admitted that “the instigation of a criminal investigation
by the filing of a complaint [was] not itself a paradigmatic
judicial act.” Id. at 257. Nonetheless, the judge’s letter qualified
for immunity because it responded to harassment from a
litigant who aimed to force the judge to recuse herself, “undoubtedly
an act that concerns judicial decision‐making.” Id.
at 258. A “direct relational nexus” linked the judge’s “judicial
decisions,” the litigant’s harassment of the judge, and the
judge’s ultimate “response in contacting the prosecuting attorneys.”
Id. at 259. Thus, the court held that when “a judge
reasonably perceives a threat to himself or herself arising out
of the judge’s adjudicatory conduct, the judge’s response, be
it a letter to a prosecutor or a call to the Marshall’s office for
security, is a judicial act within the scope of judicial immunity.”
Id. In contrast to Barrett, Judge Boliker had never adjudicated
a case involving Kowalski nor did she expect to. Even
according to Judge Boliker, the conflict between them arose
out of personal matters: Kowalski accused her of ruining his
marriage as the “BFF” of Kowalski’s wife. Her involvement in
the case—and the alleged threats against her—had nothing to
do with her judicial role.
16 No. 17‐1952
B
Unlike Judge Boliker, Judge Dickler acted neither in the
clear absence of jurisdiction nor in a non‐judicial capacity.
This court has rejected the argument that a chief judge acts
without jurisdiction when overseeing or directing the business
of the court. See Dellenbach, 889 F.2d at 760–61. For example,
the chief judge in Dellenbach did not act in the absence of
jurisdiction when he blocked an appeal assigned to other
judges until the appellant paid transcript fees to the trial court
because “control of a docket is a key function to the proper
workings of a court.” Id. at 760. Similarly, Judge Dickler directed
a motion to her colleague for resolution, keeping him
apprised of relevant information that came to her attention as
president of the family division. Her communiqué also served
as an official notice from the court, akin to an order or docket
entry, to all parties interested in the case. She acted within the
bounds of her judicial role as presiding judge.
Likewise, forwarding the letter to Kowalski’s assigned
judge and the parties to his case qualified as a judicial act. A
judge can be expected to circulate an ex parte communication
to all relevant parties. In fact, the Cook County Circuit Court
requires a judge to disclose such communications if received
“in connection with any matter pending before the judge.”
COOK COUNTY CIRCUIT COURT, COURT RULES, R. 17.2. Although
the rule did not oblige Judge Dickler as president of
the family division to disclose the communications, her disclosure
could hardly be described as non‐judicial when it mirrored
that which was required of judges in other contexts.
Judge Dickler is thus immune from suit.
No. 17‐1952 17
C
We also conclude that Judge Boliker cannot take advantage
of witness immunity. Our primary reason is waiver:
she failed to present this defense to the district court, and “we
will not affirm a judgment based on an affirmative defense
raised for the first time on appeal.” McDonald v. Adamson, 840
F.3d 343, 347 (7th Cir. 2016).
Even if she had raised it below, the defense would fail.
Witnesses “enjoy absolute immunity” to ensure that they testify
truthfully without fear of reprisal. Canen v. Chapman, 847
F.3d 407, 415 (7th Cir. 2017). The scope of their immunity is
broadly construed to include preparation of testimony, id.,
testimony at pretrial proceedings, Curtis v. Brembenek, 48 F.3d
281, 285 (7th Cir. 1995), depositions, and affidavits, Griffin v.
Summerlin, 78 F.3d 1227, 1230 (7th Cir. 1995). Witness immunity
even covers out‐of‐court conspiracies to present false testimony—
at least with respect to the individual who will present
the testimony. House v. Belford, 956 F.2d 711, 720–21 (7th
Cir. 1992).
Had Judge Boliker appeared at her deposition or testified
at the show‐cause hearing and there impugned Kowalski’s
character, he could not have sued her over those statements.
Yet that did not happen: she was never deposed, and she
never testified. Kowalski’s entire complaint centers on her
submitting information to the court in an ad hoc and irregular
fashion, rather than as a witness. For example, rather than testify
or submit evidence at her show‐cause hearing, Judge
Boliker had her counsel submit the “Secret Letter” as a socalled
“courtesy copy” and represent—in an unsworn conversation—
that Kowalski was a security threat. Later, she again
relied on the “courtesy copy” procedure to submit materials
18 No. 17‐1952
to the court. That will not do: she cannot simultaneously
evade offering proper testimony and claim the protections afforded
to those who testify.
V
Although we have ruled in part for Kowalski on the immunity
questions, this is of no avail if his complaint fails to
state a claim. In order to survive a motion to dismiss, the complaint’s
“well‐pleaded factual allegations [must] ‘plausibly
give rise to an entitlement of relief.’” Silha v. ACT, Inc., 807
F.3d 169, 174 (7th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). A threshold requirement under section 1983
is the existence of “a right secured by the Constitution and
laws.” Baker v. McCollan 443 U.S. 137, 140 (1979) (quotation
marks omitted). In order to state a claim under the Due Process
Clause, Kowalski must allege a deprivation of protected
liberty or property interests. Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 571 (1972); LaBelle Winnetka, Inc. v. Vill. of
Winnetka, 628 F.3d 937, 943–44 (7th Cir. 2010).
That is where Kowalski’s section 1983 claim stumbles. Admittedly,
the Supreme Court has treated a parent’s interest in
child custody as a form of liberty interest for purposes of
Mathews v. Eldridge, 424 U.S. 319 (1975), and has described the
termination of custody as a “unique kind of deprivation” in
which the parent has a “commanding” interest. Lassiter v.
Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 27 (1981).
Kowalski therefore has a right to due process before an adverse
decision in his custody case, which presumably includes
a right to an impartial judge. See Goldberg v. Kelly, 397
U.S. 254, 271 (1970). Yet as things stand, Kowalski has not alleged
that he suffered any adverse consequences to his parental
(or other) rights as a result of his allegedly prejudiced
No. 17‐1952 19
judge. Therefore, Kowalski’s section 1983 claim cannot proceed.
Nor does section 1985 cover Kowalski’s situation. In relevant
part, section 1985(2) bars “conspir[acies] for the purpose
of impeding, hindering, obstructing, or defeating, in any manner,
the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws.”
42 U.S.C. § 1985(2). A plaintiff “must allege class‐based animus
to state a claim for denial of access to state courts” under
section 1985(2). Wright v. Ill. Dep’t of Children & Family Servs.,
40 F.3d 1492, 1508 (7th Cir. 1994). Kowalski never asserted
that any of the defendants targeted him because of his membership
in a class—protected or otherwise. The district court
thus correctly dismissed his section 1985 claim.
Kowalski faces a similar roadblock under section 1985(3),
which requires the complaint to assert four elements:
[T]he defendants did (1) “conspire or go in disguise on
the highway or on the premises of another” (2) “for the
purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the
laws.” … [O]ne or more of the conspirators (3) did, or
caused to be done, “any act in furtherance of the object
of [the] conspiracy,” whereby another was (4a) “injured
in his person or property” or (4b) “deprived of
having and exercising any right or privilege of a citizen
of the United States.”
Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971) (quoting 42
U.S.C. § 1985(3)) (alteration in original). To satisfy the second
element, the complaint must allege “some racial, or perhaps
20 No. 17‐1952
otherwise class‐based, invidiously discriminatory animus behind
the conspirators’ action.” Id. at 102. Kowalski’s complaint
has not done so. Therefore, to the extent that he attempts
to invoke section 1985(3), he has not stated a valid
claim.

Outcome: We AFFIRM the district court’s dismissal of Kowalski’s suit,
which we modify to be a dismissal with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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