### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1952

R OBERT M. K OWALSKI

, Plaintiff

‐ Appellant

,

v.

S HAUNA B OLIKER

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 560

— Virginia M. Kendall

, Judge

.

____________________

A RGUED N OVEMBER 8, 2017

— D ECIDED J UNE 26, 2018

____________________

Before W OOD

, Chief Judge

, and F LAUM and H AMILTON

, Cir

‐

cuit Judges

.

W OOD

, Chief Judge

. Robert Kowalski is dissatisfied with his

treatment by judges and sheriff’s personnel during his di

‐

vorce 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 best2 No. 17

‐ 1952

friend, Kowalski’s wife. While Kowalski’s allegations are trou

‐ bling, in the end we conclude that the district court was cor

‐

rect to dismiss his case.

I

Kowalski and his former spouse have been waging a di

‐

vorce and child

‐ custody battle in the Circuit Court of Cook

County, Illinois. Believing that several state judges and offi

‐

cials have deprived him of a fair proceeding, Kowalski filed

this suit under 42 U.S.C. §§ 1983 and 1985. The defendants in

‐

clude 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 Let

‐

ter” from Judge Boliker to the sheriff. The letter, which Kow

‐

alski 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 at

‐

torney 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 Kow

‐

alski by describing him as dangerous, accusing him of habit

‐ ually 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 communi

‐

cations, 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 conten

‐

tions that Kowalski posed a security risk, had sent her threat

‐ ening 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 de

‐

scribed Kowalski’s letter as “an ex parte communication, es

‐ sentially seeking that [Judge Dickler] exercise [her] adminis

‐

trative 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 iden

‐

tification card—which provides security

‐ free access to the

courthouse—and the sheriff’s failure to comply with a sub

‐

poena duces tecum in Kowalski’s divorce case to produce doc

‐

uments 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 constitu

‐

tional 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. Unfor

‐ tunately, it did so before the date on which Kowalski’s re

‐

sponse 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 wit

‐

ness, 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 identi

‐

fication 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 theNo. 17

‐ 1952 5

sheriff had violated his rights by failing to respond to his sub

‐

poena 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 excep

‐

tion 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 jurisdic

‐

tion: whether we lack appellate jurisdiction because the dis

‐

trict court’s dismissal was without prejudice; whether the dis

‐

trict 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 compe

‐

tence.

A

We first consider whether lack of finality precludes appel

‐

late jurisdiction. A plaintiff generally may not appeal unless

the district court has dismissed his case with prejudice. Tay

‐

lor

‐ 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 dis

‐

missed “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 appel

‐

lants 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 de

‐

clined 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 rea

‐ sonably 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 de

‐

fendants, 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 imag

‐

ine 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 dis

‐

trict court was finished with this case, and so our appellate

jurisdiction is secure.

Moreover, a dismissal for want of subject

‐ matter jurisdic

‐

tion is necessarily without prejudice because it does not pre

‐

clude 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 Kow

‐

alski’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 state

‐

court judgments rendered before the district court proceed

‐ ings commenced and inviting district court review and rejec

‐

tion of those judgments.” Exxon Mobil Corp. v. Saudi Basic In

‐

dus. Corp.

, 544 U.S. 280, 284 (2005). It does not apply inde

‐ pendently 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 ren

‐

dered 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 circum

‐

vent 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 ju

‐

risdiction. Although the present dispute arises out of a di

‐

vorce 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 identi

‐

cal” to the probate exception. Struck v. Cook Cnty. Pub. Guard

‐

ian

, 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 af

‐ fect[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 con

‐

fines.” Id. at 312.

The Supreme Court held in Marshall that a claim of tor

‐

tious 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 do

‐

mestic

‐ relations exception. 694 F.2d 489, 490 (7th Cir. 1982).

Marshall and Lloyd point the way for our case. Kowalski seeksNo. 17

‐ 1952 9

an in personam judgment against persons who allegedly inter

‐

fered 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 oc

‐

curred during a family

‐ law proceeding does not require a dif

‐

ferent result. Kowalski complains of alleged attempts to cur

‐

tail his procedural rights in family court, but he does not at

‐

tack any application of Illinois family law.

Finally, Kowalski’s suit differs fundamentally from the su

‐ perficially 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 proceed

‐ ings,” which were held first to manage her father’s estate dur

‐ ing his senility and then to distribute it following his death.

Id. at 305. The guardians allegedly had ex parte communica

‐

tions with the judges, mismanaged the estate, engaged in self

‐ dealing, illegally searched the plaintiff’s belongings, inter

‐

fered 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 problem

‐

atic 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 de

‐ priving her of property without due process if the relevant

acts were undertaken “in the course of administering the es

‐

tate.” Id. Nor could the plaintiff complain that the guardians

deprived her of a “liberty interest in her relationship with her10 No. 17

‐ 1952

father” if that deprivation was caused by a court order de

‐ signed to prevent her “from interfering with the probate pro

‐ ceedings.” Id. at 308. Finally, she could not challenge their il

‐ legal 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 dis

‐

trict 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 re

‐ quired 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 independ

‐

ent entity.’” Id

. (quoting Horn v. City of Chicago

, 860 F.2d 700,

703 n.6 (7th Cir. 1988)). Although we have recognized a nar

‐

row exception for dismissals of certain patently frivolous at

‐

tempts to invoke federal jurisdiction, English v. Cowell

, 10 F.3dNo. 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 pro

‐

vide the plaintiff with an opportunity to develop and present

a defense of his complaint to the district court. See Stewart Ti

‐

tle Guar. Co.

, 74 F.3d at 836–37. Nonetheless, the normal rules

of harmless error apply. See F ED

. R. C IV

. 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

‐ mo

‐

vants’ 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 mo

‐

tion to amend the judgment and for leave to amend its com

‐ plaint” 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 pre

‐

sented 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 consider12 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 pre

‐

cludes 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 limit

‐

less. 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] au

‐ thority,” id

. at 356. A judge is also amenable to suit for non

‐ judicial acts. Id

. at 360–62. Both exceptions to immunity apply

here.

First, Judge Boliker acted in the clear absence of jurisdic

‐

tion. We assume that she may have immunity in cases arising

out of security measures she took in her own court or in con

‐

nection with one of her own cases. Judge Boliker, however,

gratuitously inserted herself into a case proceeding before an

‐

other judge. She had no authority to control that colleague’s

case. That is a real problem for her: we have looked for at leastNo. 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 af

‐ fording 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 re

‐

tained 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 defend

‐

ant 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 en

‐ joyed 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 can

‐

not assert judicial immunity over matters so far removed from

matters under her jurisdiction.

Judge Boliker’s intervention in Kowalski’s trial was like

‐

wise 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 na

‐

ture of an action, we consider “whether it is a function nor

‐ mally performed by a judge” and the “expectations of the par

‐

ties, i.e.

, whether they dealt with the judge in his judicial ca

‐ pacity.” 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 com

‐

mitted 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 free

‐

dom of judicial decisionmaking may be stifled.” McMillan v.

Svetanoff

, 793 F.2d 149, 154 (7th Cir. 1986). Judge Boliker’s in

‐

terference in Kowalski’s trial does not qualify as judicial from

any of these perspectives.

Lopez v. Vanderwater

, 620 F.2d 1229 (7th Cir. 1980), pro

‐

vides 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 interven

‐

tion in Kowalski’s case looks more like that of a party or in

‐ vestigator than a judge. She was a potential witness in theNo. 17

‐ 1952 15

case, and her lawyer actively tried to thwart Kowalski’s mo

‐

tion for substitution. These actions had nothing to do with

Judge Boliker’s judicial decision

‐ making function. She was al

‐ legedly 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 con

‐

trary. 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 investiga

‐

tion by the filing of a complaint [was] not itself a paradigmatic

judicial act.” Id

. at 257. Nonetheless, the judge’s letter quali

‐

fied for immunity because it responded to harassment from a

litigant who aimed to force the judge to recuse herself, “un

‐ doubtedly 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 at

‐ torneys.” 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 immun

‐ ity.” Id

. In contrast to Barrett

, Judge Boliker had never adjudi

‐

cated 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 busi

‐

ness of the court. See Dellenbach

, 889 F.2d at 760–61. For exam

‐ ple, 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 di

‐

rected 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.”

C OOK C OUNTY C IRCUIT C OURT

, C OURT R ULES

, R. 17.2. Alt

‐ hough the rule did not oblige Judge Dickler as president of

the family division to disclose the communications, her dis

‐

closure could hardly be described as non

‐judicial when it mir

‐

rored 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 ad

‐

vantage 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 tes

‐ tify 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 immun

‐ ity even covers out

‐ of

‐ court conspiracies to present false tes

‐ timony—at least with respect to the individual who will pre

‐

sent 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 tes

‐ tify or submit evidence at her show

‐ cause hearing, Judge

Boliker had her counsel submit the “Secret Letter” as a so

‐

called “courtesy copy” and represent—in an unsworn conver

‐

sation—that Kowalski was a security threat. Later, she again

relied on the “courtesy copy” procedure to submit materials18 No. 17

‐ 1952

to the court. That will not do: she cannot simultaneously

evade offering proper testimony and claim the protections af

‐

forded to those who testify.

V

Although we have ruled in part for Kowalski on the im

‐ munity questions, this is of no avail if his complaint fails to

state a claim. In order to survive a motion to dismiss, the com

‐ plaint’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 Pro

‐

cess 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. Ad

‐ mittedly, 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 ad

‐

verse decision in his custody case, which presumably in

‐

cludes a right to an impartial judge. See Goldberg v. Kelly

, 397

U.S. 254, 271 (1970). Yet as things stand, Kowalski has not al

‐ leged that he suffered any adverse consequences to his paren

‐

tal (or other) rights as a result of his allegedly prejudicedNo. 17

‐ 1952 19

judge. Therefore, Kowalski’s section 1983 claim cannot pro

‐

ceed.

Nor does section 1985 cover Kowalski’s situation. In rele

‐

vant part, section 1985(2) bars “conspir[acies] for the purpose

of impeding, hindering, obstructing, or defeating, in any man

‐

ner, 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 ani

‐

mus 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 mem

‐ bership 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) “in

‐ jured 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 perhaps20 No. 17

‐ 1952

otherwise class

‐ based, invidiously discriminatory animus be

‐

hind the conspirators’ action.” Id

. at 102. Kowalski’s com

‐ plaint has not done so. Therefore, to the extent that he at

‐

tempts to invoke section 1985(3), he has not stated a valid

claim.

We A FFIRM the district court’s dismissal of Kowalski’s suit,

which we modify to be a dismissal with prejudice.