893 F.3d 987 (7th Cir. 2018), 17-1952, Kowalski v. Boliker

Docket Nº:17-1952
Citation:893 F.3d 987
Opinion Judge:Wood, Chief Judge.
Party Name:Robert M. KOWALSKI, Plaintiff-Appellant, v. Shauna BOLIKER, et al., Defendants-Appellees.
Attorney:Robert M. Kowalski, Attorney, Law Office of Robert M. Kowalski, Chicago, IL, for Plaintiff-Appellant. Mary C. LaBrec, Attorney, Office of the Attorney General, Chaka M. Patterson, Attorney, Office of the Cook County State’s Attorney, Civil Actions Bureau, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before Wood, Chief Judge, and Flaum and Hamilton, Circuit Judges.
Case Date:June 26, 2018
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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893 F.3d 987 (7th Cir. 2018)

Robert M. KOWALSKI, Plaintiff-Appellant,


Shauna BOLIKER, et al., Defendants-Appellees.

No. 17-1952

United States Court of Appeals, Seventh Circuit

June 26, 2018

Argued November 8, 2017

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 560— Virginia M. Kendall,

Judge .

Robert M. Kowalski, Attorney, Law Office of Robert M. Kowalski, Chicago, IL, for Plaintiff-Appellant.

Mary C. LaBrec, Attorney, Office of the Attorney General, Chaka M. Patterson, Attorney, Office of the Cook County State’s Attorney, Civil Actions Bureau, Chicago, IL, for Defendants-Appellees.

Before Wood, Chief Judge, and Flaum and Hamilton, Circuit Judges.


Wood, Chief Judge.

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 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.


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

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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.

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 ... 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

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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 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.


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); Giffin 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, 44 S.Ct. 149, 68 L.Ed. 362 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); and whether it lacked subject-matter jurisdiction because of the so-called domestic-relations exception to federal competence.


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 (7th Cir. 1998); see also 28 U.S.C. § 1291. That did not happen here. The district court stated that Kowalskis 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 Kowalskis 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...

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