Loubser v. Thacker

• Decision Date: 08 March 2006
• Docket Number: No. 05-3058.,05-3058.
• Citation: 440 F.3d 439
• Parties: Annare L. LOUBSER, Plaintiff-Appellant, v. Robert W. THACKER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 439

440 F.3d 439

Annare L. LOUBSER, Plaintiff-Appellant, v. Robert W. THACKER, et al., Defendants-Appellees.

No. 05-3058.

United States Court of Appeals, Seventh Circuit.

Submitted December 5, 2005.

Decided March 8, 2006.

Annare L. Loubser, Monticello, IN, pro se.

Elizabeth Rogers, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee, Robert W. Thacker.

Michael J. Stapleton, Ball, Eggleston, Bumbleburg, McBride, Walkey & Stapleton, Lafayette, IN, for Defendant-Appellee, Alexander R. Pala.

Terry L. Smith, Dellinger, Dellinger & Smith, Monticello, IN, for Defendant-Appellee, David Diener.

Lewis D. Dellinger, Dellinger, Dellinger & Smith, Monticello, IN, for Defendant-Appellee, Doug Radersdorf.

Courtney B. Justice, Logansport, IN, pro se.

John T. Million, Monticello, IN, for Defendant-Appellee, Indiana Abstract & Title Co.

Brent R. Dechert, Dechert Law Office, Kokomo, IN, pro se.

Charles V. Traylor, Kortepeter McPherson Hun Freihofer & Minton, Indianapolis, IN, pro se.

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 proceedings 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 doctrines: Rooker-Feldman, which denies the lower federal courts the authority to overturn a state court judgment, and the "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 Constitution was intended to exclude the powers exercised by Britain's ecclesiastical courts, which, rather than the common 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, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 is clearly inapplicable. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 1248, 161 L.Ed.2d 253 (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 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 photographs of the incident, but the photographs do not depict 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 probably 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 infect 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 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, 43 S.Ct. 265, 67 L.Ed. 543 (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 complaining 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 pursuing 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, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). And, as we pointed out, merely modifying the divorce decree would not give Loubser all the relief she seeks in this lawsuit.

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, 113 S.Ct. 2167, 124 L.Ed.2d 391 (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, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir.2002); Upsher v. Grosse Pointe 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, lacking absolute immunity, be held liable. The defendants do not argue otherwise.

The remaining issue is whether the allegations of conspiracy 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 statement 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 generally Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (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....