Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.united States of America, Ex Rel. Bruce Verdone, et al.,plaintiffs-appellants, v. State of Wisconsin, et al., Defendants-appellees.we, the American National People of These United Statesrepublic of the State of Wisconsin, in Relation Toex Rel., Bruce Verdone, Pro Per, Suijuris, De Jure, at Law,plaintiffs-appellants, v. Leo F. Schlaefer, et al., Defendants-appellees, 61 F.3d 906 (7th Cir. 1995)Annotate this Case
Appeal from the United States District Court, for the Western District of Wisconsin, No. 93 C 797; John C. Shabaz, Judge.
Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges.
Plaintiff Bruce Verdone2 filed two pro se civil actions3 against numerous state, county, and city officials and employees, and against his ex-wife, Janina Ropa, alleging wrongdoing stemming from child custody proceedings, contempt proceedings, and criminal charges filed against plaintiff after he twice violated an injunction imposed by a state court, enjoining him from contacting his ex-wife or their minor children. In No. 94-1821, plaintiff also sued the federal district court clerk for allegedly interfering with his filing of this suit.
The district court in No. 94-1821 dismissed some defendants and entered summary judgment in favor of the remaining defendants. The district court in No. 94-2106 dismissed some claims for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine, and dismissed a RICO claim pursuant to Fed. R. Civ. P. 12(b) (6). Plaintiff appeals from these orders. We consolidate the two cases for purposes of appeal.
In November 1992, then Janina Verdone (now Ropa) filed for divorce. On December 2, 1992, an initial hearing was held before Wisconsin Family Court Commissioner Dolores Bomrad. Temporary legal and physical custody of the four Verdone children were awarded to Ropa. Plaintiff was ordered to deliver the youngest child, Angela, to Ropa by December 8, 1992. (The other three children were already living with Ropa.) Plaintiff was also ordered to pay temporary child support, to perform a job search, and to produce documentary evidence of the search by December 14, 1992. In late December 1992, the court ordered an intercept of plaintiff's unemployment benefits to satisfy child support.
On December 8, 1992, plaintiff refused to surrender custody of Angela, and the police were required to enter plaintiff's home and take Angela to Ropa's home. On December 14, 1992, plaintiff failed to appear at the hearing in Family Court. Commissioner Bomrad entered an order granting sole temporary legal custody of the four children to Ropa, requiring that any visitation with plaintiff be supervised by the Washington County Department of Social Services, or by an adult agreed to by the parties.
Ropa then filed a motion for contempt for plaintiff's failure to comply with the December 2, 1992 order. On January 6, 1993, the state court held a hearing on that motion. Plaintiff again failed to appear. Several days later, Judge Schlaefer of the state court issued an order finding plaintiff in contempt. To purge the contempt, plaintiff had to pay the child support he owed, pay Ropa for certain legal expenses, and produce a documentary record of his job search activities. The court also found that Commissioner Bomrad's temporary custody order was fair and reasonable.
Back in Family Court, on January 7, 1993, Ropa filed a petition for a temporary restraining order or injunction, alleging domestic abuse.4 The temporary injunction was entered. On January 13, 1993, a hearing was held before state court Judge Waddick, who issued a two-year injunction prohibiting plaintiff from contacting Ropa or the children except according to court order.
The court found that there were "reasonable grounds to believe that plaintiff has engaged in, or based upon prior conduct the respondent might engage in, domestic abuse of the petitioner [Ropa] as defined in s. 813.12(1) (a), Wis.Stats." The court issued an injunction against plaintiff, enjoining him from contacting Ropa or the children for two years (until January 13, 1995), "except as permitted by court order."
On February 2, 1993, Judge Schlaefer held a hearing to determine whether plaintiff had purged the contempt. Plaintiff once again failed to appear and Judge Schlaefer issued a writ of capias for plaintiff's arrest and ordered him to spend 14 days in jail. Plaintiff was finally arrested in March 1993. He spent six days in jail, until he produced documentary evidence of his job search. In March 1993, Judge Schlaefer appointed a guardian ad litem ("GAL") for the children, and ordered psychological evaluations of the parents.
Notwithstanding the injunction, in March 1993, plaintiff telephoned and spoke with Ropa, who informed the police. The next month plaintiff telephoned again, this time speaking with one of the children, again triggering a call to the police. As a result, criminal complaints were filed against plaintiff, charging him with violating the injunction.
Meanwhile, in the child custody proceedings, in October 1993, Judge Schlaefer ordered sole custody to Ropa; and visitation "upon reasonable notice at reasonable times and court adopts the recommendation of the GAL. Visitation to be supervised by the Department of Social Services ("DSS") or suitable relative as approved by DSS or unless agreed upon between the parties. Any communication between the parties should be through the [DSS] because of the injunction between the parties."
The complaints in these two actions are obscure and the claims for relief are nearly impossible to discern.5 Plaintiff seeks monetary damages and, at times he has requested that the federal court enjoin further proceedings in the state courts. He claims violations of his rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments, and various state and federal statutes.
The domestic relations exception to federal jurisdiction prevents federal courts from hearing claims related to divorce, custody, visitation, or alimony. Ankenbrandt v. Richards, 112 S. Ct. 2206 (1994); Allen v. Allen, No. 94-1922 (7th Cir. Feb. 17, 1995); Alpern v. Lieb, 38 F.3d 933 (7th Cir. 1994). This is true despite the fact that plaintiff is attempting to make constitutional claims. Allen, slip op. at 4-5 n. 2.
Furthermore, federal courts have no jurisdiction to review or modify judgments of state courts. Rooker v. Fidelity Trust Co., 264 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The so-called Rooker-Feldman doctrine stands for the proposition that "lower courts lack jurisdiction to engage in appellate review of state-court determinations." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 21 (1987) (Brennan, J., concurring). Federal courts may not review any claims that are "inextricably intertwined" with the state court judgments. Feldman, 460 U.S. at 483 n. 16. A claim is "inextricably intertwined" with a state court judgment if it "succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceedings as, in substance, anything other than a prohibited appeal of the state-court judgment." Pennzoil v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring).
Under this doctrine, we are compelled to conclude that the district court should have dismissed the cases for lack of jurisdiction. The claims raised in these two cases all stem from the divorce, custody, visitation and support decisions of the Wisconsin state courts, and the contempt and criminal proceedings resulting from violations of those decisions. The crux of plaintiff's suits involve the state court's action in removing Angela from his custody; entering an injunction which enjoins him from contacting his children; holding him in contempt for failure to comply with several court orders; and prosecuting him for violating the "no contact" injunction.
A plaintiff cannot avoid the jurisdictional doctrine of Rooker-Feldman simply by "casting his complaint in the form of a civil rights action," or by adding claims of constitutional deprivations. Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993), cert. denied, 114 S. Ct. 694 (1994). He only superficially remarks on the Wisconsin statutes; the attacks are not independent of the custody and visitation orders. His claims do not depend on the invalidation of the applicable Wisconsin statutes. See Gash Associates v. Village of Rosemont, Illinois, 995 F.2d 726, 728 (7th Cir. 1993). He is directly attacking, and complaining of injuries resulting from, the state judgments themselves. Id. at 728-729.
Even if any of the claims might survive the initial Rooker-Feldman inquiry, they do not survive our determination that all of the claims are inextricably intertwined with the state court proceedings. Although the complaints present numerous constitutional (though quite conclusory) claims, those claims are inextricably intertwined with the various state court determinations. See Wright v. Tackett, 39 F.3d 155, 157-58 (7th Cir. 1993) (per curiam) (holding that constitutional claims are inextricably intertwined with various divorce-related decisions of state courts); Liedel v. Juvenile Court of Madison County, 891 F.2d 1542 (11th Cir. 1990) (finding that Rooker-Feldman and Younger abstention doctrine bar federal court's exercise of jurisdiction over case involving ongoing child custody dispute, notwithstanding claims of violation of constitutional rights to due process and privacy).
If plaintiff wishes to seek federal review, he must pursue all claims through the state court system, and to the United States Supreme Court. See Alpern v. Lieb, 38 F.3d 933, 933 (7th Cir. 1994) (holding that Rooker-Feldman doctrine, the domestic relations exception to federal jurisdiction, Sec. 2283, principles of claim and issue preclusion, and principles of judicial immunity bar review of divorce-related proceedings); Wright, 39 F.3d at 157-58; Gash Associates v. Village of Rosemont, Illinois, 995 F.2d 726 (7th Cir. 1993); Leaf v. Supreme Court of Wisconsin, 979 F.2d 589, 597 (7th Cir. 1992), cert. denied, 113 S. Ct. 2417 (1993).
Even if this court could review the state court decisions, abstention would be warranted under Younger v. Harris, 401 U.S. 37 (1971) (ongoing state proceedings; important state interests implicated; plaintiff has an avenue open for review of the constitutional claims in the state courts). The Younger abstention doctrine does not become inapplicable simply because plaintiff alleges federal constitutional violations. Moore v. Sims, 442 U.S. 415, 99 S. Ct. 2371, 2379 n. 10 (1979). "The principle of Younger is that a party to a state proceeding affecting important governmental interests must resolve the dispute in the state's preferred tribunal." Nelson v. Murphy, 44 F.3d 497, 501 (7th Cir. 1995). " [P]reserving a state's right to litigate criminal cases in its own courts is the core of the Younger doctrine." Nelson, 44 F.3d at 502. The Younger principles were extended to state civil proceedings in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 (1987).
The three factors raised by the analysis in Younger, as explained in Middlesex County Ethics Comm. v. Garden State Bar Ass'n., 457 U.S. 423, 432 & n. 1 (1982), all point to abstention. First, the domestic relations action was still pending in Wisconsin when the two federal suits were filed. (Whether it is still pending is irrelevant. Pennzoil, 481 U.S. at 17 n. 16.) Second, the state proceedings involve paramount state interests in domestic relations law, child custody, and domestic violence. See Moore v. Sims, 442 U.S. 415, 435 (1979). Moreover, because "a civil protection order is quasi-criminal in nature, [it makes] the policy of Younger directly apt." Kelm, 44 F.3d 415, 423 (Batchelder, J., concurring in part and dissenting in part). Third, plaintiff has not shown that the Wisconsin courts cannot provide an adequate opportunity to raise the constitutional claims. See Pennzoil, 481 U.S. at 15. It matters not that plaintiff chose not to present the constitutional claims to the state court. See Pennzoil. As we explained earlier, the heart of the two federal suits filed by plaintiff requires an inquiry into the parent-child relationship, something better suited to the state courts.6
Thus, the Younger doctrine of abstention applies here. See, e.g., Kelm v. Hyatt, No. 93-3141, --- F.3d ---- (6th Cir. Jan. 18, 1995), 1995 U.S.App. Lexis 815 (in divorce action with domestic violence restraining order in place, court should abstain under Younger) ; Mann v. Conlin, 22 F.3d 100 (6th Cir. 1994) (abstention is proper in domestic relations case seeking injunctive and declaratory relief); Minot v. Eckardt-Minot, 13 F.3d 590 (2d Cir. 1994) (Burford abstention is proper in custody battle raising tort of custodial interference); Liedel v. Juvenile Court of Madison County, 891 F.2d 1542 (11th Cir. 1990) (finding that Rooker-Feldman and Younger abstention doctrine bar federal court's exercise of jurisdiction over case involving ongoing child custody dispute, notwithstanding claims of violation of constitutional rights to due process and privacy); Collins v. Morsillo, No. 94-CV-884 (N.D.N.Y. Sept. 19, 1994), 1994 U.S.Dist. Lexis 14133 (child support; Rooker-Feldman and principles of abstention bar federal review of state court decisions regarding plaintiff's violation or orders directing him to pay child support).
In view of our reliance on Rooker-Feldman and the abstention principles, we decline to reach the merits of plaintiff's constitutional challenges.
The two district court judges here should have dismissed the complaints for lack of subject matter jurisdiction. The merits of the state court's rulings are beyond the jurisdiction of the district court. See Wright v. Tackett, 39 F.3d 155 (7th Cir. 1994) (per curiam).
The district court decisions in Nos. 94-1821 and 94-2106 are VACATED, and the cases are REMANDED with instructions to dismiss for lack of subject matter jurisdiction.
Plaintiff Bruce Verdone shall bear the costs of the two appeals. Fed. R. App. P. 39. Finally, we agree with Judge Stadtmueller's warning that any further litigation of these matters by plaintiff Bruce Verdone may result in sanctions. See Fed. R. App. P. 38.
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in these two cases. The notices provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a); Cir.R. 34(f). Only one appellee has filed such a statement, and it opines that oral arguments would not be helpful. No other statements having been filed, the appeal is submitted for decision on the briefs and the records
In No. 94-1821, Verdone also lists as plaintiffs his four children: Bruce Verdone, Jr., Nikolas Verdone, Angela Verdone, Gina Verdone; Lori Krueger, plaintiff's live-in companion; Richard Verdone, his father; and the United States. The United States was properly dismissed as a plaintiff in both suits, since Verdone had no authority to sue on its behalf. No appearances were made by the other plaintiffs
In No. 94-1821, there is no reference to any specific federal remedial statute. It was presumed by the district court (and not disputed by plaintiff) that he was attempting to bring an action under 42 U.S.C. § 1983
Some of the allegations were concerning plaintiff harassing Ropa and the children with verbal threats of violence and harm
The complaint in No. 94-1821 is 22 pages, plus 24 exhibits. In No. 94-2106, the complaint is 143 pages long, with 685 paragraphs. The exhibits are one-inch thick
Recently, the Supreme Court addressed abstention in domestic relations cases after deciding that the domestic relations exception did not apply under the facts presented there. Ankenbrandt v. Richards, 112 S. Ct. 2206, 2216 (1992). See also Lloyd v. Loeffler, 694 F.2d 489, 493 (7th Cir. 1982) (domestic relations exception inapplicable to tort action for wrongful interference with child custody). Ankenbrandt does not hinder the relevance of abstention principles set out in Younger. In fact, the Court stated in that case that absent diversity jurisdiction, abstention under either Younger or Burford v. Sun Oil Co., 319 U.S. 315 (1943), may be proper. Ankenbrandt, 112 S. Ct. at 2215-16