Opposition Brief — Mark Anthony Jenkins, Petitioner v. Timothy O'Rourke, et al.

No. 20-433

In the Supreme Court of the United States

__________________________________________________________________

MARK ANTHONY JENKINS

Petitioner

v.

TIMOTHY O’ROURKE, Jefferson Parish Assistant District Attorney, Jefferson

Parish Juvenile Court; ROBERT M. MURPHY, Former Judge of the Louisiana Fifth

Circuit Court of Appeal; KRISTYL TREADAWAY; BARRON BURMASTER, Judge

Respondents

__________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________________________________________________

BRIEF IN OPPOSITION ON BEHALF OF TIMOTHY O’ROURKE

__________________________________________________________________

PAUL D. CONNICK, JR.

DISTRICT ATTORNEY

By: s/ Darren A. Allemand

DARREN A. ALLEMAND #34847

COUNSEL FOR TIMOTHY O’ROURKE

ASSISTANT DISTRICT ATTORNEY

200 DERBIGNY STREET

GRETNA, LOUISIANA 70053

(504) 368-1020

QUESTION PRESENTED

1. Whether the United States District Court and the United States Court of

Appeals for the Fifth Circuit erred in dismissing the Petitioner’s claims against

ADA Timothy O’Rourke under the Rooker-Feldman doctrine so as to warrant

the exercise of this Court’s jurisdiction.

ii

TABLE OF CONTENTS

QUESTION PRESENTED……………………………….………………………….…….…ii

TABLE OF CONTENTS………………………………..……………………...…………….iii

TABLE OF AUTHORITIES…………………………………..……..……………………....iv

INTRODUCTION……………………………………………………………….………….….1

STATEMENT OF THE CASE………………………………………..…..……………..……1

REASONS FOR DENYING THE PETITION ……………………………………………...2

CONCLUSION……………………………………………………………………………....…9

iii

TABLE OF AUTHORITIES

Cases

Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs,

398 U.S. 281, 90 S. Ct. 1739, 26 L. Ed. 2d 234 (1970)…………………........................….6

Doe v. Fla. Bar,

630 F.3d 1336 (11th Cir. 2011)…………………….…………………...………………...……4

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)………………………..….…passim

GASH Assocs. v. Village of Rosemont, III,

995 F.2d 726 (7th Cir. 1993)………………………...…………………..............................3,4

Jenkins v. Murphy,

2018 WL 6182441 (E.D. La. 2018)………………………………...………………..…passim

Jenkins v. O’Rourke,

789 Fed.Appx. 495 (5th Cir. 2020)……………………………...……………………...passim

Kastner v. Tex. Bd. Of Law Examiners,

408 F.Appx. 777 (5th Cir. 2010)…………………………………..……………………………4

Lance v. Dennis,

546 U.S. 459, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006)……………………….............….3

Morris v. Am. Home Mortg. Servicing, Inc.,

443 F.Appx. 22 (5th Cir. 2011)………………………………..…………………………….….5

Mosley v. Bowie Cnty. Tex.,

275 F.Appx. 327 (5th Cir. 2008)…………………………………….……………………...….5

Noel v. Hall,

341 F.3d 1148 (9th Cir. 2003)………………………………..……………............................5

Pease v. First Nat'l Bank,

335 F. Appx 412 (5th Cir. 2009)………………………………….……………………..…….6

Randolph v. Texaco Incorporation,

471 F.Appx. 416 (5th Cir. 2012)…………………………….…………………………....……6

iv

Scott v. Fortenberry,

278 F.Appx. 440 (5th Cir. 2008)…………………………………….…….………………..….5

Skinner v. Switzer,

562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011)……………………………….…....4

Stabler v. Ryan,

949 F. Supp. 2d 663 (E.D. La. 2013)……………………………………………………….....6

Truong v. Bank of America, N.A.,

717 F.3d 377 (5th Cir. 2013)………………………………….……………………………...4,6

Turner v. Chase,

334 F. Appx 657 (5th Cir. 2009)…………………….……………………………………..….6

Union Planters Bank Nat'l Ass'n v. Salih,

369 F.3d 457 (5th Cir. 2004)……………………………………..………………………….….3

Verizon Md., Inc. v. Pub. Serv. Comm'n of Md.,

535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002)…………………………….…...….4

Weaver v. Tex Capital Bank N.A.,

600 F.3d 900 (5th Cir. 2011)…………………………………..…………………………….….3

Rules

Fed. R. Civ. P. 12…………………………………………………………...………………...…2

v

INTRODUCTION

Throughout the proceedings in the United States District Court, the United

States Court of Appeals for the Fifth Circuit, and now this Court, the Petitioner has

sought to essentially have the Federal Courts review the Louisiana State Court

rulings in his family law proceedings and in doing so has made and continues to make

false and incredible allegations of a “conspiracy” involving ADA Timothy O’Rouke, an

appellate judge, a juvenile judge, and a private attorney. The lower federal courts

correctly held the Petitioner’s action to be barred by the Rooker-Feldman doctrine.

This Court need not and should not grant certiorari to review the correct decisions of

the courts below.

STATEMENT OF THE CASE

The Petitioner was involved in protracted litigation in state court relative to

issues of family law, expounded on in detail by the United States District Court in its

ruling granting the Respondents’ motions to dismiss. Jenkins v. Murphy, 2018 WL

6182441 (E.D. La. 2018). On March 22, 2018, the Petitioner filed the instant action

(which he later amended) in the United States District Court, in which he argued

that the Louisiana Fifth Circuit Court of Appeal lacked subject matter jurisdiction

relative to a July 31, 2015 order in a writ application before that Court. ROA.10-184.

The Petitioner named Assistant District Attorney Timothy O’Rourke as a Defendant

(now Respondent) and made allegations relative to a “conspiracy” in which ADA

O’Rourke, two Louisiana state judges, and a private attorney supposedly “conspired”

to deny him due process in the state court proceedings and “conspired” to have the

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Louisiana Fifth Circuit Court of Appeal “usurp” the authority of the Jefferson Parish

Juvenile Court. ROA.10-184.

ADA O’Rourke and the other Respondents filed motions to dismiss, which the

Petitioner opposed. ROA.221-616. On November 27, 2018, the United States District

Court granted the motions to dismiss based upon the Rooker-Feldman doctrine and

Fed. R. Civ. P. 12(b)(1); in so ruling, the United States District Court did not address

the alternative bases for dismissal urged by ADA O’Rourke and the other

Respondents. ROA.634-647. The Petitioner filed a motion for new trial, which was

denied. ROA.648-700. The Petitioner appealed, and on January 10, 2020, the United

States Court of Appeals for the Fifth Circuit affirmed the United States District

Court’s judgment “for essentially the reasons stated by that court.”

Jenkins v.

O’Rourke, 789 Fed.Appx. 495 (5th Cir. 2020). The Petitioner has now filed a petition

for writ of certiorari with this Court (which the Petitioner signed himself given that

his current counsel is facing disciplinary action for her handling of this case and her

false and incredible allegations of a “conspiracy”). ADA Timothy O’Rourke now files

the instant opposition.

REASONS FOR DENYING THE PETITION

The Petitioner essentially seeks to have the Federal Courts review the

Louisiana State Court rulings in his family law proceedings and in doing so makes

false and incredible allegations of a “conspiracy” involving ADA O’Rouke, an

appellate judge, a juvenile judge, and a private attorney. However, as the United

States District Court and the United States Court of Appeals for the Fifth Circuit

2

found, this is barred by the Rooker-Feldman doctrine. The Rooker–Feldman doctrine

is jurisdictional in nature. Weaver v. Tex. Capital Bank N.A., 660 F. 3d 900, 904 (5th

Cir. 2011). Reduced to its essence, the Rooker-Feldman doctrine holds that inferior

federal courts do not have the power to modify or reverse state court judgments except

when authorized by Congress. Union Planters Bank Nat'l Ass'n v. Salih, 369 F. 3d

457, 462 (5th Cir. 2004) (internal quotation marks and citation omitted); see generally

18B Charles Alan Wright et al., Federal Practice and Procedure § 4469.1 (2d ed. 2002

& Supp. 2012). This Court has explained that the doctrine is a narrow one and "is

confined to ... cases brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments." Exxon Mobil Corp.

v. Saudi Basic Indus. Corp, 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454

(2005). This Court has cautioned that in light of the "narrow ground" Rooker-Feldman

occupies, it does not prohibit a plaintiff from "present[ing] 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." Id. at 284, 293 (quoting GASH Assocs. v. Village of Rosemont,

III., 995 F. 2d 726, 728 (7th Cir. 1993)). In these circumstances, state law preclusion

principles control. Id. at 293; see also Lance v. Dennis, 546 U.S. 459, 466, 126 S. Ct.

1198, 163 L. Ed. 2d 1059 (2006) ("Rooker-Feldman is not simply preclusion by another

name.").

3

The Fifth Circuit in Truong v. Bank of America, N.A., 717 F. 3d 377 (5th Cir.

2013) discussed the two hallmarks of the Rooker-Feldman inquiry. One hallmark of

the Rooker-Feldman inquiry is what the federal court is being asked to review and

reject. See Exxon Mobil, 544 U.S. at 284. A federal district court lacks jurisdiction

"over challenges to state court decisions in particular cases arising out of judicial

proceedings." Feldman, 460 U.S. at 486 (emphasis added); accord GASH Assoc, 995

F. 2d at 728. Thus, the rule does not prohibit a district court from reviewing nonstate-court decisions. See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S.

635, 644 n.3, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002) (review of executive action). It

also does not bar a challenge to a rule on which a judicial decision was based if the

rule was "promulgated in a non-judicial proceeding." Feldman, 460 U.S. at 486; see

also Skinner v. Switzer, 562 U.S. 521, 131 S. Ct. 1289, 1297-98, 179 L. Ed. 2d 233

(2011) (Rooker-Feldman does not bar a federal plaintiff's constitutional challenge to

a state statute after a state court has construed the statute adversely to the plaintiff).

Thus, in Feldman, the district court could not hear a bar examination applicant's

claim that the District of Columbia Court of Appeals had violated his due process

rights by acting arbitrarily and capriciously in rejecting his petition. 460 U.S. at 48687. The district court could, however, hear his constitutional challenge to the bar

admissions rule the Court of Appeals had applied in reaching its decision. Id. at 487;

see also Doe v. Fla. Bar, 630 F.3d 1336, 1341-42 (11th Cir. 2011) (Rooker-Feldman

bars as-applied constitutional challenges, but not facial challenges); Kastner v. Tex.

Bd., of Law Exam'rs, 408 F. Appx 777, 779 (5th Cir. 2010) (same).

4

The second hallmark of the Rooker-Feldman inquiry is the source of the federal

plaintiff's alleged injury. See Exxon Mobil, 544 U.S. at 284. In a decision that the

Exxon Mobil Court cited with approval, the Ninth Circuit held that if a federal

plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and

seeks relief from a state court judgment based on that decision, Rooker-Feldman bars

subject matter jurisdiction in federal district court. If, on the other hand, a federal

plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse

party, Rooker-Feldman does not bar jurisdiction. Noel v. Hall, 341 F.3d 1148, 1164

(9th Cir. 2003); see also Morris v. Am. Home Mortg. Servicing, Inc., 443 F. Appx 22,

24 (5th Cir. 2011) (federal plaintiff's claim that a foreclosure judgment is unlawful is

barred "because he is complaining of injuries caused by the state court judgments");

Scott v. Fortenberry, 278 F. Appx 440, 441 (5th Cir. 2008) (Rooker-Feldman does not

bar a § 1983 plaintiff's claim for damages arising from court reporter's failure to

prepare a trial transcript and consequent delay of his criminal appeal because the

suit did not challenge his conviction); Mosley v. Bowie Cnty. Tex., 275 F. Appx 327,

328-29 (5th Cir. 2008) (Rooker-Feldman bars a claim that a state child support order

is void, but not a claim that state government defendants violated the federal

plaintiffs' constitutional rights in the course of enforcing the order).

Rooker-Feldman bars claims that are "inextricably intertwined" with the state

court judgment. As the Exxon Mobil Court reiterated, the Feldman Court adopted

this language only to explain that a "state court loser" cannot invite a federal district

court to "sit in direct review of state court decisions" by asserting constitutional

5

claims that the state court had not directly addressed. Exxon Mobil, 544 U.S. at 286

n.1; Feldman, 460 U.S. at 482 n.16 (quoting Atl. Coast Line R.R. Co. v. Bhd. of

Locomotive Eng'rs, 398 U.S. 281, 296, 90 S. Ct. 1739, 26 L. Ed. 2d 234 (1970)). The

Feldman Court repeated this phrase when this precise situation arose in that case:

The federal plaintiff could not assert a claim in federal court that the District of

Columbia Court of Appeals’ adverse decision deprived him of his constitutional due

process rights, even when he had not raised this argument before the Court of

Appeals. 460 U.S. at 486-87; see also Randolph v. Texaco Incorporation, 471 F. Appx

416, 417 (5th Cir. 2012) (Rooker-Feldman bars constitutional claims that ''essentially

attack[]" a state-court judgment); Pease v. First Nat'l Bank, 335 F. Appx 412, 415 (5th

Cir. 2009) (Rooker-Feldman bars a federal plaintiff's § 1983 claim challenging an

adverse foreclosure judgment as a constitutional due process violation).

In Stabler v. Ryan, 949 F. Supp. 2d 663, 666-68 (E.D. La. 2013), the Court

points out this distinction from Truong, and holds that the Rooker-Feldman doctrine

precludes federal subject matter jurisdiction where the plaintiff is seeking relief from

the state court judgment itself. In support of its conclusion, Stabler states, "RookerFeldman bars 'cases brought by state court losers complaining of injuries caused by

state-court judgment rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments." Stabler, 949 F. Supp.

2d at 666 (citing Exxon Mobil Corp. v. Saudi Basic Inds. Corp.,544 U.S. 280, 284, 125

S. Ct. 1517, 161 L. Ed. 2d 454 (2005)). See also Turner v. Chase, 334 F. Appx 657 (5th

Cir. 2009). Turner involved a federal court challenge to a state court divorce

6

judgment, in which the plaintiff asked that the federal court vacate the judgment due

to allegations that, inter alia, the judgment was "obtained by fraud." Id. at 659. The

Fifth Circuit affirmed the district court's dismissal of the case as "squarely within the

category of cases covered by the Rooker-Feldman doctrine," since "the complaint

clearly comprised a collateral attack on the state court's judgment." Id. at 660.

In its decision below, the United States District Court noted the four elements

of the Rooker-Feldman doctrine: (1) a state-court loser; (2) alleging harm caused by a

state-court judgment; (3) that was rendered before the district court proceeding

began; and (4) the federal suit requests review and reversal of the state court

judgment. As the United States District Court correctly concluded, all four elements

are satisfied and the Rooker-Feldman doctrine squarely applies.

While the Petitioner seeks to exempt his action from the Rooker-Feldman

doctrine by invoking the “void ab initio” exception in claiming that the Louisiana Fifth

Circuit’s ruling from July 31, 2015 is void for lack of subject-matter jurisdiction, as

the United States District Court pointed out, it is unclear whether this exception is

recognized by the Fifth Circuit (or by this Court). In any event, this case is certainly

not the appropriate time to answer this difficult question. As noted below:

7

In this case, because it is clear that the July 31, 2015 order Jenkins questions

is not void for lack of subject-matter jurisdiction, it is not necessary now for

this Court to deduce the Fifth Circuit’s current position on the void ab initio

exception. Indeed, Jenkins filed a motion in the 24th Judicial District Court

pursuant to Louisiana Code of Civil Procedure article 2002 seeking an order

declaring the July 31, 2015 order null and void for lack of subject-matter

jurisdiction. Jenkins, 216 So. 3d at 1087-88. The trial court sustained Jackson’s

exception of no cause of action, and Jenkins appealed. Id. at 1088. On appeal,

the Louisiana court of appeal held that it did have subject-matter jurisdiction

to render the July 31, 2015 order. Id. at 1090. Jenkins filed a writ of certiorari

with the Louisiana Supreme Court challenging that ruling, and that court

denied writs. Jenkins v. Jackson, 224 So. 3d 984 (La. 2017). Thus, Jenkins has

fully litigated in the state courts the issue of whether the judgment he now

seeks to overturn was void ab initio. The Louisiana state courts have held that

it was not. In the lawsuit pending before this Court, Jenkins asks this Court

to function as a super-appellate court and reverse the decisions of the

Louisiana state courts. This is precisely the type of action that is barred by the

Rooker-Feldman doctrine. As such, this Court lacks subject-matter jurisdiction

over Jenkins' suit.

Jenkins, p. 9.

As such, the United States District Court’s ruling (and the United States Court

of Appeals for the Fifth Circuit’s ruling) was correct and should be affirmed. Out of

an abundance of caution, while the United States District Court and the United

States Court of Appeals for the Fifth Circuit did not address ADA O’Rouke’s

alternative bases for dismissal, ADA O’Rouke would now reiterate and incorporate

all other bases for dismissal submitted below, to wit: prescription, absolute

prosecutorial immunity, failure to state a claim upon which relief can be granted, and

the Domestic Relations Exception. Indeed, the applicability of these alternative bases

for dismissal makes this case an even poorer vessel to further flesh out the RookerFeldman doctrine. ADA O’Rourke also categorically denies the existence of any sort

of a fantastical “conspiracy” alleged by the Petitioner or any wrongdoing whatsoever.

8

CONCLUSION

For the foregoing reasons and any other reasons apparent to this Court, ADA

O’Rourke respectfully submits that the petition for a writ of certiorari should be

denied.

PAUL D. CONNICK, JR.

DISTRICT ATTORNEY

By: s/ Darren A. Allemand

DARREN A. ALLEMAND #34847

COUNSEL FOR TIMOTHY O’ROURKE

ASSISTANT DISTRICT ATTORNEY

200 DERBIGNY STREET

GRETNA, LOUISIANA 70053

(504) 368-1020

9