In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-4230
A.D. BROKAW,
Plaintiff-Appellant,
v.
KAREN WEAVER, MERCER COUNTY,
STATE OF ILLINOIS, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 C 4052—Joe B. McDade, Chief Judge.
____________
1
SUBMITTED MARCH 15, 2002 —DECIDED SEPTEMBER 13, 2002
____________
Before RIPPLE, MANION, and DIANE P. WOOD, Circuit
Judges.
MANION, Circuit Judge. In 1983, three-year old A.D.
Brokaw was removed from her parents’ home based on
allegations of child neglect. After she turned eighteen, A.D.
sued her paternal grandfather, aunt and uncle (who was
1
This case has been treated as a successive appeal and sub-
mitted to the original panel under Operating Procedure 6(b). The
panel has concluded that another oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
2 No. 00-4230
a Deputy Sheriff with the Mercer County Sheriff’s Office),
alleging that they conspired to violate her constitutional
rights by reporting false claims of child neglect. A.D. also
sued the various state actors and agencies involved in
removing her from her parents’ custody. The district court
held that A.D.’s suit was barred by the Rooker-Feldman
doctrine because, in effect, A.D. was challenging the validity
of the state removal proceedings. A.D. appeals. We reverse
and remand this case for further proceedings.
I.
In July 1983, six-year-old C.A. Brokaw and his three-
year old sister A.D. Brokaw were forcibly removed from
their parents’ home by a Mercer County Deputy Sheriff
and a Mercer County Probation Officer. The Brokaw chil-
dren claimed that their removal resulted from a conspir-
acy between their paternal grandfather, Weir Brokaw,
paternal aunt, Karen Weaver, and paternal uncle, James
Brokaw (who was a Deputy Sheriff for Mercer County),
and other Mercer County and state officials. Specifically,
the children alleged that because their father’s family dis-
approved of their parents’ religious beliefs and practices,
they conspired to falsely accuse them of child neglect in
order to cause the state to remove C.A. and A.D. from
their home and thereby cause the breakup of the family.
According to C.A. and A.D., to further this scheme, on
July 6, Deputy James Brokaw enlisted the aid of the Sher-
iff of Mercer County, Marvin Thirtyacre. Sheriff Thirty-
acre in turn contacted Penny Ingersoll, a caseworker for
the Illinois Department of Children and Family Services
(IDCFS), and they arranged to meet later that day. That
afternoon Thirtyacre, Weir, Karen and James met briefly
with Ingersoll outside a courthouse in Aledo, Illinois, and
No. 00-4230 3
a few minutes later, Judge Susan Gende joined them. Dur-
ing this meeting, Thirtyacre, Weir, Karen and James alleg-
edly falsely claimed that C.A. and A.D. were victims of
child neglect. According to the defendants, Judge Gende
orally ordered C.A. and A.D. to be removed from their
parents’ home. What exactly transpired at that meeting,
however, is unclear because there was no official record
compiled during that meeting; in fact, at that time there
was no official proceeding pending involving C.A. and A.D.
In any event, Judge Gende did not issue any written
order concerning the removal of C.A. and A.D. Nonethe-
less, that evening two men entered the home of Dennis
and Bonnie Brokaw and removed C.A. and A.D. When
their parents chased the unknown intruders, demanding
to know what was going on, one of the men allegedly
replied: “We don’t have to tell you a damn thing!” Both
C.A. and his parents believed the children had been kid-
naped and the Brokaws called the police. It wasn’t until
later that they learned that the children were removed
based on allegations of child neglect.
The following day, on July 7, Sheriff Thirtyacre filed a
petition for the adjudication of wardship in state court. The
state court (Judge Berglund) ordered C.A. and A.D. to
remain in foster care, where they had been placed after
their removal the prior day. Neither C.A. nor A.D. was
present at that hearing, nor were they represented by an
attorney or a guardian ad litem. C.A. and A.D.’s parents,
while present at the hearing, were also not represented
by counsel, and they were not allowed to speak, call wit-
nesses, or cross-examine witnesses. In fact, there wasn’t
even a court reporter present at the hearing. On August 3,
1983, Judge Gende adjudicated C.A. and A.D. wards of
the state, but then on October 28, 1983, a state court or-
dered the children returned home, finding no continuing
4 No. 00-4230
basis to hold the children. At that point A.D. and C.A. had
been separated from their parents and home for approxi-
mately three months.
In February 1997, after he reached the age of majority,
C.A. filed a pro se complaint in federal court alleging var-
ious state law and federal constitutional claims against
the various individuals involved in instigating, investi-
gating, directing, or overseeing the removal of him and
his sister from their parents. The defendants included
Mercer County; Marvin Thirtyacre, the Mercer County
Sheriff; James Brokaw, a Mercer County Deputy Sheriff
and C.A. and A.D.’s paternal uncle; Weir Brokaw, their
paternal grandfather; Karen Weaver, their paternal aunt;
the State of Illinois; Penny Ingersoll, a caseworker for
the IDCFS; Steve Dickens, a caseworker for the IDCFS;
Susan Gende, a state judge in the 14th Judicial Circuit of
Illinois; James Bartelt, the Director of the Mercer County
Probation Department; Jonathon Weakley, a Mercer Coun-
ty Deputy Sheriff; and Vickie Hansen, a Mercer County
Probation Officer. Brokaw v. Mercer County, 235 F.3d 1000,
1008 (7th Cir. 2000). Specifically, C.A. alleged that the
defendants violated his Fourth Amendment rights by
seizing him, or by causing his seizure, without a warrant,
probable cause or exigent circumstances. He also al-
leged that the defendants violated his right to familial
relations, as protected by substantive due process, and
finally, he alleged that in removing him, the defendants
2
violated his procedural due process rights. Id. at 1009.
2
In his complaint, C.A. broadly alleged violations of his First,
Fourth, Fifth, Eighth, Ninth, Tenth, and Fourteenth Amendment
rights, but on appeal he only presented the three referenced
constitutional theories. Id. at 1009.
No. 00-4230 5
Following various proceedings, the district court dis-
missed C.A.’s complaint for failure to state a claim, and C.A.
appealed. On appeal, this court reversed and remanded,
holding that C.A. could state Fourth Amendment and
Fourteenth Amendment claims against all of the defendants
except Probation Officer Hansen and Judge Gende. See id.
at 1026. We also reversed the district court’s decision not
to exercise supplemental jurisdiction over C.A.’s state
law claims, and remanded the case for further proceed-
ings consistent with our decision. Id.
While C.A.’s appeal was pending, A.D. reached the age
of majority and filed a virtually identical lawsuit against
the same defendants, although she also added D. Jean
Ortega-Piron, the Guardianship Administrator of the
IDCFS, as a defendant. While C.A.’s suit was still pending
on appeal, a magistrate judge in A.D.’s case, sua sponte,
recommended that her suit be dismissed based on the
Rooker-Feldman doctrine, reasoning that A.D., in effect, was
challenging the validity of the state court order of removal.
On November 29, 2000, three weeks before we released
our opinion reinstating C.A.’s claims, the district court
followed the magistrate judge’s recommendation and
dismissed A.D.’s suit based on the Rooker-Feldman doc-
trine. A.D. appeals to this court. Because A.D.’s appeal
involves facts and issues virtually identical to those consid-
ered in C.A.’s appeal, we treat her appeal as a successive
appeal, see Operating Procedure 6(b), and for the reasons
3
discussed below, we reverse and remand.
3
Neither the parties nor the district court had raised the issue of
Rooker-Feldman in C.A.’s initial case, and in Brokaw v. Mercer
County, 235 F.3d 1000, this court did not discuss the applicability,
or more aptly, inapplicability, of that doctrine.
6 No. 00-4230
II.
At the outset of this analysis we need to underscore
two significant features of this appeal. First, before any
court proceedings occurred, A.D. alleges a number of
facts that implicate several defendants for violations of
familial and Fourth Amendment rights. Second, the ini-
tial hearing ordering A.D. a temporary ward of the state
prohibited any participation by her parents, and the parents
had no counsel present to intervene on their or A.D.’s
behalf. In that context, on appeal A.D. argues that the
district court erred in dismissing her suit based on the
Rooker-Feldman doctrine.
“The Rooker-Feldman doctrine derives its name from two
decisions of the Supreme Court, Rooker v. Fidelity Trust Co.,
263 U.S. 413, 68 L. Ed. 362, 44 S. Ct. 149 (1923), and District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 L.
Ed. 2d 206, 103 S. Ct. 1303 (1983).” Remer v. Burlington Area
Sch. Dist., 205 F.3d 990, 996 (7th Cir. 2000). Simply put, the
Rooker-Feldman doctrine “precludes lower federal court
jurisdiction over claims seeking review of state court
judgments . . . [because] no matter how erroneous or
unconstitutional the state court judgment may be, the
Supreme Court of the United States is the only federal court
that could have jurisdiction to review a state court judg-
4
ment.” Id. Thus, if a claim is barred by the Rooker-
4
“In contrast to the Rooker-Feldman doctrine, res judicata does
not concern itself with the determination of whether a district
court may properly exercise subject matter jurisdiction in a
particular case. Rather, res judicata constitutes an affirmative
defense and is dependant upon the Full Faith and Credit Stat-
ute, 28 U.S.C. §§ 1738, which requires federal courts to give a
state court judgment the same preclusive effect it would have
(continued...)
No. 00-4230 7
Feldman doctrine, a federal court lacks subject matter
jurisdiction over the case. Id. This court reviews de novo
a district court’s decision that it lacks subject matter juris-
diction based on the Rooker-Feldman doctrine. Id.
While “[i]n its most straight-forward presentment, the
Rooker-Feldman doctrine bars federal jurisdiction when the
federal plaintiff alleges that her injury was caused by a
state court judgment,” the exact parameters are less
than clear because the doctrine “is not limited to just those
claims alleging that the state court judgment itself caused
the federal plaintiff’s injury; the doctrine also precludes
federal jurisdiction over claims inextricably intertwined
with a state court determination.” Remer, 205 F.3d at 996.
Discerning “which claims are and which claims are not
‘inextricably intertwined’ with a state judgment” is a
difficult process. Id. As we have often explained, “[t]he
pivotal inquiry in applying the doctrine is whether the
federal plaintiff seeks to set aside a state court judgment
or whether he is, in fact, presenting an independent claim.”
Id. (internal quotations omitted).
4
(...continued)
in state court.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 560
(7th Cir. 1999). But the distinction between the application of
Rooker-Feldman and res judicata is a fine one. See Nesses v. Shepard,
68 F.3d 1003, 1004 (7th Cir. 1995). Generally speaking, if the
complaint attacks the state court judgment, then Rooker-Feldman
bars subject matter jurisdiction, but if the plaintiff attempts
to relitigate the case and thus bypass the state court judgment,
the federal court has subject matter jurisdiction, but res judicata
bars the suit. Id. The defendants do not contend that res judicata
bars A.D.’s complaint. However, they do argue alternatively that
A.D.’s suit is barred by collateral estoppel—another doctrine
often confused with the Rooker-Feldman doctrine. We address
this alternative argument infra at 16-20.
8 No. 00-4230
Whether A.D. is presenting an independent claim rather
than a claim premised on an injury caused by the state
court’s judgment in her child removal case is a complex
question, as it is often “ ‘difficult to distinguish’ between
situations in which the plaintiff is seeking to set aside a
state court judgment and ones in which the claim is inde-
pendent.” Edwards v. Illinois Bd. of Adm. to the Bar, 261 F.3d
723, 728-29 (7th Cir. 2001) (quoting Long, 182 F.3d at 555).
A.D. contends that the defendants conspired—prior to any
judicial involvement—to cause false child neglect proceed-
ings to be filed, resulting in her removal from her home
in violation of her Fourth Amendment and Fourteenth
Amendment substantive and procedural due process
rights. A.D. explains that she is seeking damages for the
conspiracy, not for the state court’s decision in the child
neglect proceeding. Thus, under these circumstances, A.D.
maintains she has an independent claim which is not
barred by Rooker-Feldman.
In support of her position, A.D. cites Nesses, 68 F.3d 1003.
In that case, Nesses brought suit in federal court against
the lawyers and some of the judges involved in a breach
of contract case which he had filed in Indiana state court
and lost. Id. at 1004. Nesses claimed that his opponents’
lawyers used their political clout to turn the state judges
against him. Id. The district court dismissed Nesses’ suit
for lack of jurisdiction based on the Rooker-Feldman doc-
trine. Id. This court rejected that conclusion, reasoning that
the Rooker-Feldman doctrine did not bar Nesses’ claim be-
cause his suit was not premised on a claim that the state
court judgment denied him some constitutional right; rath-
er, his federal claim was based on a right independent of
the state court proceeding. As we explained in Nesses, any
other conclusion would mean that “there would be no
federal remedy for a violation of federal rights whenever
the violator so far succeeded in corrupting the state ju-
No. 00-4230 9
dicial process as to obtain a favorable judgment, . . . .” Id.
at 1005. Moreover, we reasoned that such a “result would
be inconsistent with cases in which, for example, police
officers are sued under 42 U.S.C. § 1983 for having fabri-
cated evidence that resulted in the plaintiff’s being con-
victed in a state court.” Id.
We conclude that the Nesses reasoning applies here. As
in Nesses, A.D. is not merely claiming that the decision
of the state court was incorrect or that the decision violated
her constitutional rights; rather, she is alleging that the
people involved in the decision to forcibly remove her
from her home and her parents and subject her to the
custody of the IDCFS violated her constitutional rights,
independently of the state court decision.
Other circuits have applied similar reasoning to arrive
at this conclusion. See Holloway v. Brush, 220 F.3d 767 (6th
Cir. 2000), and Ernst v. Child and Youth Servs. of Chester
County, 108 F.3d 486 (3d Cir. 1997). In Holloway, a mother
brought a Section 1983 action against the county and the
county social worker alleging that they had improperly
interfered with her right to the custody of her children.
Holloway, 220 F.3d at 772. The Sixth Circuit held that
the Rooker-Feldman doctrine did not bar the mother’s fed-
eral claim because she was not seeking review of the
custody decision, which was an entirely separate state
matter. Id. at 778-79. Instead, as the court in Holloway
explained, the mother’s claim presented a distinct ques-
tion as to “whether certain actions in the course of those
proceedings may have involved a violation of her federal
constitutional rights for which the responsible party may be
held liable for damages.” Id. at 779.
Similarly, in Ernst, 108 F.3d 486, the Third Circuit held
that Rooker-Feldman did not bar a claim based on alleged
constitutional violations stemming from child custody
10 No. 00-4230
proceedings. Id. at 491-92. In Ernst, a grandmother, who had
sole guardianship of her granddaughter, sued the child
welfare department and case workers alleging substan-
tive and procedural due process claims after the defen-
dants removed and retained custody of her granddaugh-
ter for five years. Id. at 488-89. The court held that “the
Rooker-Feldman doctrine did not preclude the district court
from deciding those claims because a ruling that the de-
fendants violated Ernst’s right to substantive due process
by making recommendations to the state court out of ma-
lice or personal bias would not have required the court
to find that the state court judgments made on the basis
of those recommendations were erroneous.” Id. at 491-92.
The court further reasoned that “it is clear that deciding
the substantive due process claims did not involve fed-
eral court review of a state court decision because Ernst’s
substantive due process claims were never decided by the
state court.” Id. at 492.
On the other hand, in Goodman v. Sipos, 259 F.3d 1327
(11th Cir. 2001), the Eleventh Circuit held that Rooker-
Feldman barred jurisdiction over due process claims
brought by a mother and her son against the Georgia
Department of Family Services for damages caused by the
defendants’ allegedly unconstitutional investigation and
initiation of state removal proceedings. To the extent
Goodman conflicts with Holloway and Ernst, we find Hollo-
way and Ernst more consistent with this circuit’s precedent
on Rooker-Feldman, namely this court’s decisions in Nesses,
see supra at 8-9, and Long, see infra at 12-13. Holloway
and Ernst, like Nesses and Long, recognized that constitu-
tional violations may arise independently from state court
proceedings, and thus not be barred by Rooker-Feldman.
Moreover, while Goodman expressly rejected the holdings
of Holloway and Ernst, the court in Goodman did so in
a conclusory manner, providing no analysis. See Good-
No. 00-4230 11
man, 259 F.3d at 1333 n.7. We, however, for the reasons dis-
cussed in Nesses and Long, find Holloway and Ernst more
persuasive and therefore follow their lead in the factual
scenario of a child removal proceeding.
The defendants nevertheless argue that A.D.’s claim
must be barred by the Rooker-Feldman doctrine because
a successful constitutional challenge in federal court
could mean that the state court erred in deciding A.D. was
abused or neglected. However, “the fact that the plain-
tiff’s pursuit of [her] federal claims could ultimately show
that the state court judgment was erroneous [does] not
automatically make Rooker-Feldman applicable.” Long, 182
F.3d at 555-56. Rather, the appropriate question is whether
“the federal plaintiff [is] seeking to set aside a state court
judgment, or does [s]he present some independent claim,
albeit one that denies a legal conclusion that a state court
has reached in a case to which he was a party.” GASH Assoc.
v. Village of Rosemont, 995 F.2d 726, 728 (7th Cir. 1993). And
we have concluded that A.D. presents an independent
claim. See supra at 9.
The defendants further argue that A.D. is not presenting
an independent legal claim because she would not have
suffered any injury from the alleged conspiracy absent
the state court’s order directing her removal and placing
her in foster care. This argument presents a more difficult
question, and one which we grappled with in Nesses and
Long. In Nesses, which, as summarized above, involved
a federal suit against the lawyers and some of the judges
involved in the plaintiff’s unsuccessful breach of con-
tract case, we noted that a federal plaintiff “can without
being blocked by the Rooker-Feldman doctrine, sue to
vindicate [an independent] right and show as part of his
claim for damages that the violation caused the decision
to be adverse to him and thus did harm him.” 68 F.3d at
12 No. 00-4230
1005. This language indicates that, even if A.D. would not
have suffered any damages absent the state order of
wardship, her claim is not barred by the Rooker-Feldman
doctrine because her claim for damages is based on
an alleged independent violation of her constitutional
rights. It was this separate constitutional violation which
caused the adverse state court decision.
In Long v. Shorebank Development Corp., 182 F.3d 548, this
court addressed a similar situation concerning whether
the Rooker-Feldman doctrine barred the plaintiff’s feder-
al claims. In that case, Sasha Long sued her landlords,
Shorebank Development Corporation, South Shore As-
sociates, and the attorneys representing the corporate
landlords, alleging that the defendants unlawfully caused
her to be evicted from her home in violation of her rights
under the Fair Debt Collection Practices Act (“FDCPA”) and
her due process rights. Id. at 551. The district court dis-
missed the complaint concluding that the state court’s
order of eviction could not be challenged in federal court
because of the Rooker-Feldman doctrine. Id. On appeal,
this court first concluded that the plaintiff’s FDCPA
claims were not barred by the Rooker-Feldman doctrine
because they were “independent of and complete prior to
the entry of the eviction order.” Id. at 556. See also id. (not-
ing that “[i]t makes no difference that Long may also deny
the correctness of the eviction order in pursuing these
claims”). However, the plaintiff’s due process claim pre-
sented a more difficult question. Initially, we noted that “it
does not seem that Long’s due process argument can be
considered separate from the eviction order entered against
her,” because if the proceedings in the state court “resulted
in her favor, . . . it seems unlikely that she would have been
evicted or lost all of her possessions, custody of her daugh-
ter, and her job.” Id. at 556. We further explained that “while
Long complains that the defendants deprived her of her
No. 00-4230 13
property without due process in initiating and pursuing the
eviction action, the injuries she alleges were complete only
when the Circuit Court entered the eviction order against
her.” Id. at 557. We then reasoned that because “[a]bsent
the eviction order, Long would not have suffered the
injuries for which she now seeks to be compensated,” her
claims appeared to be barred under Rooker-Feldman. Id.
This reasoning seemingly supports the defendants’
argument that A.D.’s claims are barred by the Rooker-
Feldman doctrine since her alleged injury was caused (at
least in part) by the state court’s ruling in the adjudica-
tion of wardship proceedings. However, after discussing
the general applicability of the Rooker-Feldman doctrine,
as summarized above, Long further explained that “the
Rooker-Feldman doctrine can apply only where the plaintiff
had a reasonable opportunity to raise his federal claim
in state proceedings.” Long, 182 F.3d at 558 (quoting Wood
v. Orange County, 715 F.2d 1543, 1547 (11th Cir. 1983)).
Long concluded that because the plaintiff could not have
presented her due process claims before the state court
during the forcible entry and detainer proceedings, Long
did not have a reasonable opportunity to raise her claims
in state court. Id. at 558-59. Accordingly, Long held that
the Rooker-Feldman doctrine did not apply to bar the plain-
tiff’s due process claim. Id. at 561.
This exception to the Rooker-Feldman doctrine is signifi-
cant, and therefore we reiterate: While the Rooker-Feldman
doctrine bars federal subject matter jurisdiction over issues
raised in state court, and those inextricably intertwined
with such issues, “an issue cannot be inextricably inter-
twined with a state court judgment if the plaintiff did
not have a reasonable opportunity to raise the issue in
state court proceedings.” Id. at 558.
14 No. 00-4230
In this case, the Rooker-Feldman doctrine does not bar
A.D.’s claims because she did not have a reasonable oppor-
tunity to raise her constitutional claims in the state court
child neglect proceedings. That proceeding was brought
under the Juvenile Court Act which, at the hearing stage,
allowed the court to “consider only the question whether
the minor is abused, neglected, delinquent, in need of
supervision, or dependent.” 705 Ill. Comp. Stat. 405/2-18.
Because the Juvenile Court Act did not provide A.D. with
a mechanism to present a claim against her relatives and
the other state defendants for their alleged violations of
her constitutional rights, she did not have a reasonable op-
portunity to present her claims for purposes of the Rooker-
5
Feldman doctrine. See, e.g., Ernst, 108 F.3d at 492 (plaintiff’s
claims were not barred by Rooker-Feldman because child
dependency adjudication involves a determination that a
child is without proper parental care or control, and subse-
quent custody decisions are made on the basis of the best
interests of the child, and therefore plaintiffs did not have
a realistic opportunity to present substantive due proc-
ess claims). But see Goodman, 259 F.3d at 1334 (holding
that plaintiffs had a reasonable opportunity to present
their constitutional claims during state juvenile court
proceedings). In fact, at the first court hearing on July 7,
1983, when A.D. was adjudicated a temporary ward of
the court and directed to remain in foster care, A.D. wasn’t
even present and was not represented at that hearing by
6
a guardian ad litem or an attorney. Thus, even though
5
In ruling that A.D.’s claims were barred by Rooker-Feldman, the
district court did not consider whether she had a reasonable
opportunity to present her claim to the state court.
6
We note, additionally, that some of A.D.’s alleged injuries were
caused by the removal the previous day before a court proceed-
(continued...)
No. 00-4230 15
technically A.D. was a party to the juvenile proceedings,
she did not have a reasonable opportunity to raise her
constitutional claims during that proceeding. Therefore,
even assuming that A.D.’s constitutional claims are not
independent of the state court proceedings, because she
lacked a reasonable opportunity to present them during the
adjudication of wardship hearing, they are not barred by
7
Rooker-Feldman.
6
(...continued)
ing had been initiated. Thus, even under the defendants’ read-
ing of Long, that portion of A.D.’s damage claim would not
be barred by Rooker-Feldman. In fact, even Goodman, which
held that Rooker-Feldman barred the plaintiffs’ due process claims,
held that the plaintiffs’ claims challenging a search conducted
incident to the child neglect investigations were not barred by
Rooker-Feldman because “[n]o issue involving the search was or
could have been raised in the custody proceeding.” Goodman, 259
F.3d at 1333-34.
7
In arguing that A.D. could have presented her constitutional
claims to the state court, the defendants cite to an extensive
supplemental appendix which contains numerous documents
purportedly prepared in connection with the state court pro-
ceedings. These documents were not presented to the district
court, and are thus not part of the record on appeal. The defen-
dants suggest that we may consider these documents since
we may take judicial notice of state court proceedings. How-
ever, given that the district court did not rely on these docu-
ments and that the plaintiff did not have an opportunity to
determine their validity or present opposing evidence, we
conclude that the appendix material was improperly submitted
on appeal. Cf. United States v. Phillips, 914 F.2d 835, 840 (7th Cir.
1990) (“An appellant may not attempt to build a new record on
appeal to support his position with evidence that was never
admitted in the court below.”). In any event, nothing in the
(continued...)
16 No. 00-4230
Our recent decision in Jensen v. Foley, 295 F.3d 745 (7th Cir.
2002), supports this conclusion. In Jensen, the parents of
infant Kayla Jensen sued the Illinois Department of Chil-
dren and Family Services, along with local law enforce-
ment officers, after the defendants removed Kayla from
her parents’ custody without a pre-deprivation hearing.
Based on Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir.
2000), the Jensens argued that the removal was uncon-
stitutional because the defendants lacked probable cause
or exigent circumstances. The district court dismissed the
Jensens’ claims, concluding that they were barred by the
Rooker-Feldman doctrine. On appeal, we held that the Rooker-
Feldman doctrine did not apply because that doctrine “bars
a plaintiff from bringing a § 1983 suit to remedy an in-
jury inflicted by the state court’s decision,” id. at 747
(emphasis in original), whereas “the injury that the plaintiffs
here complain of was caused not by the state court’s
temporary custody order, but by the underlying taking of
Kayla by the DCFS agents and local officers, . . . .” Id. at 748.
Similarly, in this case, A.D.’s injury was caused not by the
state court’s temporary custody order, but by the defen-
dants’ alleged unconstitutional conduct.
However, in Jensen while we held that the Rooker-Feldman
doctrine did not bar the Jensens’ suit, we concluded that
their claims were barred by collateral estoppel, also
known as issue preclusion. In that case, we noted that the
7
(...continued)
supplemental appendix would alter our conclusion that A.D.’s
claim is not barred by Rooker-Feldman, and therefore we grant
A.D.’s motion to strike the appendix. See Reed v. City of Chi-
cago, 77 F.3d 1049, 1054 n.6 (7th Cir. 1996) (striking records of
state court proceedings which were not part of the district
court’s record and which were irrelevant to appeal).
No. 00-4230 17
Illinois Juvenile Court Act in effect at the time of Kayla’s
removal required a post-removal hearing to determine
whether there was probable cause to believe that she was
neglected. Id. at 748. Thus, because the state court deter-
mined that such probable cause existed, we were “barred
by the doctrine of issue preclusion from reconsidering the
issue” in the Jensens’ federal suit. Id.
The defendants in this case similarly argue that the
doctrine of collateral estoppel (i.e., issue preclusion) bars
A.D.’s claim, submitting our recent decision in Jensen as
supplemental authority supporting their argument. Because
“the preclusive effect of a state court judgment in a federal
case is a matter of state rather than of federal law,” to
consider the defendants’ argument we turn to Illinois law
on collateral estoppel. CIGNA Health Care of St. Louis, Inc. v.
Kaiser, 294 F.3d 849, 856 (7th Cir. 2002). “Under Illinois law,
collateral estoppel requires that: (1) the issues decided in
the prior adjudication are identical to issues presented
for adjudication in the current proceeding; (2) there be a
final judgment on the merits; and (3) the party against
whom estoppel is asserted was a party or in privity with
a party in the prior action.” Kalush v. Deluxe Corp., 171
F.3d 489, 493 (7th Cir. 1999). Against this backdrop, we
consider A.D.’s claims.
A.D. alleged that the defendants conspired with state
actors to file false claims of child neglect so as to cause
her and her brother to be removed from their parents’
home, which in turn the defendants hoped would destroy
the Brokaw family, whose religious beliefs the defen-
dants disliked. The state removal proceedings, on the
other hand, considered only whether the evidence pre-
sented constituted sufficient proof to support an order of
temporary wardship. What we have before us is a ques-
tion involving the difference between a challenge con-
18 No. 00-4230
cerning “the sufficiency of the evidence to establish proba-
ble cause” and “the integrity of the evidence” used to
establish probable cause. Schertz v. Waupaca County, 875 F.2d
578, 581 (7th Cir. 1989). The former action is barred by
collateral estoppel, while the latter is not. Id. Thus, for
instance, in Schertz, we explained that if “the finding
of probable cause is based on the defendant’s intentional
misrepresentation or concealment of material facts, the
plaintiff may be able to proceed on a Fourth Amendment
claim challenging the reasonableness of the arrest.” Id. at
582. While in Schertz the plaintiff did not make such a
claim, id. at 582, in the case before us that is exactly what
A.D. did. See also Bailey v. Andrews, 811 F.3d 366, 369-70
(holding that probable cause determination made at a
criminal hearing was designed to evaluate the sufficiency
of the evidence, as opposed to the integrity of the evidence,
and accordingly, a Section 1983 action charging a police
officer with bad faith was not barred by the doctrine
of collateral estoppel because the issues were different).
This contrasts with Jensen wherein the plaintiffs argued
that there was no probable cause supporting their daugh-
ter’s removal, but did not allege any sort of conspiracy or
filing of false claims of child neglect based on the religious
practices of the family. Thus, in Jensen the plaintiffs’ claims
were barred by collateral estoppel. But in this case because
the first requirement for collateral estoppel—that the issues
decided in the prior adjudication are identical—does not
exist, the doctrine of collateral estoppel does not bar A.D.’s
claim. See, e.g., Ernst, 108 F.3d at 492 n.4 (holding that
grandmother’s Section 1983 action against child welfare
department was not barred by collateral estoppel because
the state court merely determined the issue of “proper
parental care or control,” and did not address the grand-
mother’s constitutional claims premised on the welfare
worker’s alleged improper bias and motive).
No. 00-4230 19
A.D.’s case also differs from Donald v. Polk County, 836
F.2d 376 (7th Cir. 1988). In Donald, the parents of a child
removed from their home sued various state officials
alleging a violation of their due process and familial
relations rights. This court held that the Donalds’ claims
were precluded by the doctrine of collateral estoppel
because a jury concluded by clear and convincing evidence
that their daughter had been physically abused. Id. at 382.
However, in that case the Donalds did not claim they were
not afforded full discovery rights, nor did they cite any
“specific instances of a false statement or even an exag-
gerated statement in any of the defendants’ reports, peti-
tions, or testimony.” Id. at 381. The Donalds also did not
propose any “reasonable motive why the defendants would
be prejudiced against the Donalds.” Id. Based on these
circumstances, we concluded the conclusory allegations
of bad faith on the part of the defendants prevented
the Donalds from relying on a claim of fraud in the underly-
ing custodial hearing to overcome the doctrine of collat-
eral estoppel. In contrast, in this case A.D. has made spe-
cific and detailed allegations concerning not only the
purported false statements, but the motive underlying
those statements, as well as a motive for a state actor—
her uncle—to have joined the conspiracy. This distinguishes
A.D.’s case from Donald.
Finally, before closing we note that not only did the state
custodial proceedings involving A.D. address different
issues, but based on A.D.’s allegations there is serious
concern about the fairness and integrity of those proceed-
ings. As we explained in CIGNA Health, 294 F.3d 849,
notwithstanding the doctrine of collateral estoppel, “[r]ede-
termination of issues is warranted if there is reason to
doubt the quality, extensiveness, or fairness of procedures
followed in prior litigation.” Id. at 855-856. (internal cita-
tions omitted). And “Illinois law denies collateral estoppel
20 No. 00-4230
effect to a finding not made on the basis of a fair and
adequate hearing.” Id. (citing Fried v. Polk Bros., Inc., 190
Ill.App.3d 871, 138 Ill.Dec. 105, 546 N.E.2d 1160, 1164
(Ill.App.1989); Coronet Ins. Co. v. Booker, 158 Ill.App.3d 466,
110 Ill.Dec. 616, 511 N.E.2d 793, 796-97 (Ill.App.1987)). For
this added reason, the defendants’ reliance on collateral
estoppel fails. But see Donald, 836 F.2d at 383 (noting
that one Wisconsin case suggests that under Wisconsin
collateral estoppel law, a plaintiff who did not seek to rem-
edy procedural unfairness through the appellate process
cannot raise the issue collaterally).
III.
If A.D. Brokaw succeeds in her federal case, that may
admittedly call into question the validity of the underly-
ing state child neglect proceeding. Nonetheless, the Rooker-
Feldman doctrine does not bar her suit because A.D. did
not have a reasonable opportunity to raise her claims in
state court. Therefore, we conclude that the district court
erred in dismissing A.D.’s suit under Rooker-Feldman for
lack of subject matter jurisdiction. Additionally, the de-
fendants’ argument on appeal that A.D. is barred by
collateral estoppel from maintaining this suit is misplaced.
The issue in A.D.’s federal case is not identical to the one
presented in the state custody proceedings, and in any
event, based on A.D.’s allegations any findings stemming
from the state court hearings were not the product of a fair
hearing. For these and the forgoing reasons, we REVERSE
8
and REMAND. On remand, the district court should con-
8
The defendants presented numerous alternative arguments
for affirmance, but none of those arguments concern subject
(continued...)
No. 00-4230 21
sider whether consolidation of C.A. and A.D.’s suits is ap-
propriate.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
8
(...continued)
matter jurisdiction. Rather, the defendants are trying to obtain
summary judgment based on different legal theories and/or
defenses, without having given the district court or the plain-
tiff an opportunity to present contrary factual and legal argu-
ments. Therefore, those alternative arguments are not appropri-
ately before this court and should be considered in the first
instance by the district court on remand. See Goodman, 259 F.3d
at 1330 n.5. See, e.g., Box v. A&P Tea Co., 772 F.2d 1372, 1376 (7th
Cir. 1985) (internal citations omitted) (“On appeal of a sum-
mary judgment, the appellate court can usually consider only
those matters that were presented to the trial court. True, we
may affirm a summary judgment on any ground that finds
support in the record, but the ground must have been ade-
quately presented in the trial court so that the non-moving
party had an opportunity to submit affidavits or other evidence
and contest the issue.”).
USCA-97-C-006—9-13-02