Federal suit by disgruntled litigant against Miami probate judge Arthur Rothenberg dismissed

Editor's note: Juan, the publishing of this travesty of law is greatly appreciated. This Shark understands your position concerning comments and would not wish any statement from you that would jeopardize future practice of law.  Lucius Verenus, Schoolmaster, ProbateSharks.com

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Federal suit by disgruntled litigant against Miami probate judge Arthur Rothenberg dismissed

Posted on June 25, 2008 by Juan Antunez

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Sarhan v. Rothenberg, Slip Copy, 2008 WL 2474645 (S.D.Fla. Jun 17, 2008)

Dr. Robert Sarhan, on behalf of himself and his mother, Yvonne Sarhan, filed suit in Miami's U.S. District Court against one of this city's most experienced and esteemed probate judges, Arthur Rothenberg, alleging that his mother's constitutional rights had been violated when Judge Rothenberg adjudicated his mother incapacitated and appointed her a guardian. Apparantly unhappy with the fact that Judge Rothenberg's ruling was upheld on appeal by the 3d DCA, Dr. Sarhan sought another bite at the apple before a federal court. And just to make sure everyone knew he meant business, Dr. Sarhan's federal claim also sought $100 million in punitive damages.

This case highlights two themes I've written about before. First, vexatious pro se litigants are simply a fact of life in probate litigation and counsel/judges need to know how to manage that problem, because it's not going away [click here, here]. Second, the U.S. Supreme Court's 2006 decision limiting the scope of the "probate exception" to federal jurisdiction is likely to trigger a surge in probate-related matters (like the linked-to case) ending up in federal court [click here, here]. Again, probate counsel need to know how to manage this jurisdictional issue as well.

No, you can't relitigate your guardianship case in federal court:

The linked-to opinion is an excellent road map for probate counsel trying to figure out when (if ever) litigation related to contested guardianship proceedings can end up in federal court. Most of us would automatically assume this case was silly to begin with (which probably explains why Dr. Sarhan filed it pro se), but not many could articulate exactly why, as a matter of jurisdictional jurisprudence, you'd get laughed out of court for pulling a prank like this. After this case, you'll know why.

Probate Exception to Federal Jurisdiction:

Under the probate-exception to federal jurisdiction, a U.S. District Court is preculded from adjudicating disputes having to do with property that is in the custody of a state probate court. Here's how the U.S. Supreme Court articulated the rule in 2006:

. . . when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.

Marshall v. Marshall, 547 U.S. 293, 311-12, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006) (emphasis added).



In this case the Miami U.S. District Court applied this general rule to a contested guardianship proceeding relying heavily on an opinion out of the U.S. 7th Circuit penned by none other than Judge Richard Posner, probably one of the U.S.'s most prolific and well-known legal theorists (and blogger!). Here's your road map:

As explained by Judge Posner in Struck v. Cook County Pub. Guardian, 508 F.3d 858, 860 (7th Cir.2007), a case with very similar facts to the Petition before this Court, proceedings to resolve disputes over the administration of a incompetent's estate are still in rem in character. “That is, they are fights over a property or a person in the court's control.” Id. The Petition is an example of a case falling squarely within the probate exception as clarified by the Supreme Court in Marshall. Dr. Sarhan requests this Court to reverse the orders of the probate court and to return all assets and property distributed pursuant to the guardianship to him. (See D.E. 8 at 15.) These are not matters that are “outside the confines” of the state probate court's supervision of Yvonne Sarhan's guardianship. As such, Judge Posner's analysis of the application of the probate exception in Stroud is directly on point here:

The res-the plaintiff's mother-is in the control of the guardian appointed by the state court, and decisions concerning the plaintiff's right of access to his mother and to her assets, her records, and her mail are at the heart of the guardian's responsibilities and are supervised by the court that appointed him ... [P]laintiff is seeking to remove into the federal court the res over which a state court is exercising control. That is the sort of maneuver that the probate/domestic-relations exception is intended to prevent.

508 F.3d at 860.



Rooker-Feldman doctrine:

Under the Rooker-Feldman doctrine, a United States District Court lacks subject matter jurisdiction to review final judgments of a state court. If you don't like a state-court ruling, then your options are to appeal up through to the Florida Supreme Court and from there the U.S. Supreme Court, but you can't simply walk across the street to your local federal court house and ask for a do-over.

In this case Judge Rothenberg's guardianship ruling had already been affirmed per currium by the 3d DCA before Dr. Sarhan filed his federal claim. Rather than going up the appellate court chain, Dr. Sarhan simply refiled his case in the Miami U.S. District Court. Wrong answer. Here's how the magistrate judge in the linked-to opinion applied the Rooker-Feldman doctrine to this case:

As was the case in the Seventh Circuit's probate exception decision, Struck v. Cook County Public Guardian, there is also persuasive precedent for the application of the Rooker-Feldman jurisdictional doctrine to a guardianship proceeding. The Tenth Circuit's recent decision in Mann v. Boatright, 477 F.3d 1140 (10th Cir.2007), stands squarely for the proposition that a pro se litigant in Dr. Sarhan's position cannot obtain a do-over in federal court against the judges and interested persons in a state court guardianship proceeding that has been finally adjudicated. The Court relied primarily on the Rooker-Feldman doctrine:

To [petitioner] this means that having lost in probate court, she cannot file a federal complaint seeking review and reversal of the unfavorable judgment. Even if the probate court's decision was wrong, that does not make its judgment void, but merely leaves it “open to reversal or modification in an appropriate and timely appellate proceeding.” ... Nearly all of [petitioner's] claims against the individual defendants assert injuries based on the probate court's judgments and, for her to prevail, would require the district court to review and reject those judgments. As such, her claims are inextricably intertwined with the probate court judgments and are therefore barred by the Rooker-Feldman doctrine.

Id. at 1146-1147 (quoting Exxon-Mobil, 544 U.S. at 284, 125 S.Ct. 1517, 161 L.Ed.2d 454).



The very same type of claims raised in Mann have been raised here, over the same type of guardianship proceeding that was finally adjudicated in state court, and against the same defendant-the state court probate judge. Whatever merit Dr. Sarhan's claims may have, they are left for the Third District Court of Appeal or the Florida Supreme Court to decide. And if those state appellate courts fail to grant him the relief he seeks, Dr. Sarhan's sole remedy is to proceed by way of certiorari to the United States Supreme Court, as per 28 U.S.C. § 1257. This District Court, however, has no power to consider whether Dr. Sarhan was right and whether Judge Rothenberg's judgments should be vacated or voided, as per 28 U.S.C. § 1331. The Rooker-Feldman doctrine, therefore, requires the dismissal of his Petition.

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Comments (8)Read through and enter the discussion with the form at the end

paul i auerbach - June 25, 2008 10:22 AM

this was my first reading of your site and I found the discussion very well written and illuminateing

Thanks

Todd Nadrich - June 25, 2008 10:30 AM

Why are you always addressing Pro Se litigants as vexatious, your aware I came to you and you turned down my case against a deceased attorney. I settled this case as a pro se litigant in the amount of $66,000. I am glad I didn;t have to share this amount with any attorney

Jeffrey S. Goethe - June 25, 2008 11:12 AM

The reported opinion doesn't make it clear, but if Dr. Sarhan is not licensed to practice law and he filed a claim asserting his mother's rights, isn't that unlicensed practice of law? With court budgets getting tighter and tighter, shouldn't the scale tip away from unrestricted access to the courts to a recognition that unlicensed practice of law and frivilous claims squander precious judicial resources? Whether the public likes attorneys or not, we help manage the judicial system, despite the common perception that we make it more complicated.

It is also interesting that Dr. Sarhan asserted claims of "fraud" which seem to be a favorite theme among pro se litigants.

These comments are not directed at Dr. Sarhan personnally. I don't know him personally, don't know all of the circumstances of his situation, and cannot judge him. Instead, my comments are directed to the issues raised by Juan.

Juan C. Antúnez - June 26, 2008 2:07 PM

Jeff -

You're right on target with the unlicensed-practice-of-law point. That point is addressed in the opinion, but was not dispositive, so I didn't touch on it in my blog post. If you pull the case, you'll see the discussion.

Regards. Juan

Juan C. Antúnez - June 26, 2008 2:12 PM

Paul - Thanks for the kind words. Regards. Juan

jan - July 7, 2008 12:27 PM

yes, it is interesting the claims of "fraud" b/c "Dr" Sarhan is no doctor at all.so, here he was not an attorney nor doctor of any manner yet committed fraud anyway!!

Robert Sarhan, MD - August 19, 2008 9:44 PM

My name is Dr Robert Sarhan and I filed this lawsuit in behalf of mother and had every legal right to do so. Whoever is writing this article has not researched the law well and has not reviewed the Sarhan case. Before you can comment about the lawsuit, you have to research and understand what took place in this fraudulent guardianship case and read my rebutle to the former Judge Torres. In the case of Yvonne Sarhan 03-3440, after a 2 year investigation we found that not only Judge Arthur Rothenberg were making fraudulent and illegal decisions guardianship cases, but Judge Bruce Levy former Probate Judge, Norman Gerstein, Maria Korvick and other Judge’s are also guilty of extorting millions of dollars from the elderly people here in South Florida. My mother Yvonne Sarhan is one of many victims that have been forced into a fraudulent guardianship scam that involves corrupt attorneys, corrupt guardians and yes , corrupt Judges. In the Yvonne Sarhan case, Yvonne Sarhan all happened at the same time:

1. Enrique Zamora was the Court appointed attorney for Yvonne Sarhan.

2. Yvonne was never told she could hire her own attorney

3. Enrique Zamora was representing Yvonne Sarhan’s Emergency Temporary Guardian Barbra Reiser at the same time who was an Adverse Party, which you lawyers no that is agains Rule 4-1.7, my mother was never informed of the conflict, therefore my mother’s Constitutional Rights of Due Process.

4. In the future, Zamora would deny the conflict committing fraud on the court, I hired an excellent appeal attorney, but the corrupt 3rd DCA Judges are going to cover up the corruption in this case.

5. My brother who took this case to court because my mother chose me to care for her and her assets and spoke very eloquently and told the Judge Bruce Levy, but it didn’t matter, even though my mother had a right to choose in a legitimate courtroom, she will not be released until her money is gone so far about 800,000 dollars have been stolen.

6. My brothers attorney name is Cheryl Silverman, Ms Silverman was representing Barbra Reiser in yet another guardianship case at the same time representing my brother, again, this is illegal and was kept hidden until we uncovered this corruption.

7. My attorney, Harvey Rogers, who I hired to represent me, lied to me and told me that we won the guardianship case but Judge ordered me to sign the home my mother gave me into my mothers name, which was a lie and destroyed my case committing extrinsic fraud.

8. Icing on the Cake, I did file on February 5, 2004, 6 months after my mother was ruled incompetent a suggestion of capacity, and I was ordered to take my mother to the court appointed Psychiatrist Dr. Mario Sanchez Martinez, he ruled my mother competent on March 10, 2004, 9 days later I took my mother to Dr. David Racher a board certified Neurologist which ruled Yvonne Sarhan Competent.

9. My mother has been place on Seroquel, it is a medication used for Schizophrenic patients, on the insert it clear, that this medication should not be given to elder patients with dementia, can cause sudden cardiac death. My mother does not have Schizophrenia, and the Psychiatrist Dr. Steven Leslie Kaplan stated when I talked to him about my mother he stated wow that is a high dose he is giving my mother and he is giving this medication for sleeping. However, there are many other medications safer for my mother, we believe without one doubt they are trying to kill my mother so the guardians, Judges and attorneys can split the other 700,000 in assets. This is occurring throughout this Country and Dr. Kaplan has been reported to the Florida Medical Board.

10. What this tells you is this, the three people 2 doctors and one lay person are going out and ruling elderly people incompetent to assist in this multi million dollar racketeering scam to steal from our most vulnerable citizens.

11. About my rebutle , please read it, you can email me with your address and I will be happy to send it to you. The Rooker Feldman Doctrine clearly states that my mother would have had to have a fair trial and a right to be heard, but my mother did not have that right, so the Rooker Feldman Doctrine does not apply. Also there are exceptions to the Rooker Feldman Doctrine such as the State Court Judgment was Procured through Fraud, deception or mistake, mistake In re Sun Valley Foods, Co., 801 F.2d 186, 189 (6th Cir.1986) (“A federal court ‘may entertain a collateral attack on a state court judgment which is alleged to have been procured through fraud, deception, accident, or mistake ....“ ‘ (quoting Resolute Ins. Co. v. State of North Carolina, 397 F.2d 586, 589 (4th Cir.1968)

12. The Bottom line we have good and bad in all of us good doctors bad doctors good lawyers and bad lawyers, honest Judges and Corrupt Judges. What we have here is simple, the Judges, Attorneys and Guardians are ruling elderly people incompetent to steal their money. The Judge’s are absolutely corrupt because they do not follow the law, they are put in a very powerful position and have abused there positions and have destroyed the lives of many family’s.

13. There will be an Upcoming lawsuit against all involved, my mother will be released from this fraudulent guardianship scam and your welcome to stand up to protect the elderly people of South Florida, if you have any balls. From what I see, many attorneys are either scared of the Judge’s or they are ok with robbing the elderly and destroying their lives as well as the family members.

14. I understand that the Florida Bar protects some of these attorneys and the judicial qualification up until now has not done their job either. The bottom line is simple, it is my mother and no judge has the right to take away my right to care for my mother. Judge’s have long abused the laws in these guardianship cases and we are hopeful that Senator Barack Obama and or the Democratic National Convention in Denver will address this corruption and elderly abuse and exploitation, since we are on the Platform for Guardianship reform or abolishment.

In closing the Rooker Felman Doctrine does not apply, please review the exceptions to the Rooker Feldman Doctrine. The Supreme Court of Florida states I have standing, and in Marshal vs Marshal states that the Federal Court can rule who gets what in Probate matters, but it is the state court must follow the Federal ruling and order what is given to who. The fact that my mother was competent and the Judge refused to give her rights back is a crime. That Judge Bruce Levy Stated she is not competent until I say she is competent. That murderers on Death Row has more rights than my mother. That after 35 years of my father parking cars in the hot sun, and worked hard all his life and built a nice nest egg and a nice home, now you have dirty corrupt lawyers and guardians that have stolen our lives, our money and our home. If you think what happened in this case is legal then you must be a part of the corrupt legal system that exist here in Miami. If you would like to sue or assist in this matter because you want to make a difference and help the elderly please contact me at rsarhan@bellsouth.net Thank You for reading my comments

National organization to stop elderly abuse and exploitation. Robert Sarhan



James T. Struck - September 25, 2008 8:42 PM

Dear Dr. Sarhan,

I filed 44 or more motions in state courts. Filed 4 Illinois Supreme Court appeals and 2 US Supreme Court Appeals. Little of it went anywhere. I did do state court filings.One motion allowing my mother's letters be admitted in the Illinois Court of Appeals and one motion for a supplemental petition in the Illinois Supreme Court were allowed; all other requests denied. You are allowed to represent your own interests that is not frivolous.I think Rooker Feldman promotes kidnapping. Just kidnap people through guardianship and then say there is no right to complain in federal court. No federal complaint would go forward. In a disability hearing in Illinois, you are also allowed to represent another.

I am sorry the case I am involved in was cited against you. Cook County Guardian had done things like treat my mother and I similar to slaves.Every rights request like "where is my mother" "can I visit my mother" "my mother wants to get fresh air away from smokers" "can you reimburse this dental bill for her care" resulted in a fee demand by the County and frequently being pushed from the Daley Center and threatened with contempt. Her sister had gotten beat up in the Civic Center, but my mother was beat up at Weiss Hospital and I was denied visitation afterwards. Weiss gave her haldol because I was talking about the all you can drink and frequent alcohol at IIT being associated with deaths. IIT graduates did most of these rights violations. Concerns are retaliated against-concerns from National Socialist/slavery similarities to the ability of my mother to take care of herself. I would honestly be scared of coming to a university like Roosevelt or IIT, because schools like IIT and Roosevelt University do things like lie about following someone when trying to see a parent who was pushed or fell with trauma (IIT) and say things "if you talk you will be fired" (IIT)or "you went bitchin to the government"(Rooosevelt) and then their graduates restrict access to see parent with affadavits or restriction requests. The whole guardianship system leads to not talking and not going to doctors. Saying something somoene does not like could lead to loss of rights and having a diagnosis leads to loss of rights-similarities with slavery.

State probate laws, about taking over the lives of those who have incapacity, mental illness or injury under guardianship, present risks. Persons, who might be injured, become disabled or stressed by being in a city with a corporation that has sold missiles and weapons involved in many conflicts, face risks of loss of rights for themselves and family. Injury is a risk for athletes; states and areas with guardianship laws which take over rights of person with injury present risks that should be considered. Illinois is one such state with a guardianship law that can take over the life of anyone with injury, mental illness or incapacity. Cook County guardian staff, for example, take over persons' lives and do not allow family to leave nursing homes, visit family, phone family, let family control their own assets, let person go to church, let family get fresh air, avoid smokers, know where family is. Guardianship as profiting from the control of another, threatening jail and fining people for right’s expression, and having complete control over a person is little different than slavery in some of its earlier forms. Guardianship in Illinois states that preferences are given to what the person wants, but the person and families wishes are responded to with jail threats, deaths threats, and shots without consent. Illinois is an interesting case as being an area that traditionally glorified its tradition of being opposed to slavery. Illinois’ probate law however uses a different element or characteristic as a tool to enslave persons.

Rather than use skin color, poverty, illness, disability, being family, limitations and mental illness are used. A case study, or list of events which occurred in one guardianship, is used to expose some of the similarities with the slavery system.

Text:

Any diagnosis makes someone at risk of enslavement in Cook County by Cook County Guardian under Illinois Probate Law in this case study. County takes away your right to decide for self

These are some human rights problems visitors/athletes face coming to a Chicago Olympics or to Chicago

1. Asking where parent or family is can result in restraining order and jail threat by Cook County judge and sheriff staff

2. Asking to visit, take family home can result in contempt charges by Cook County judge. The judge charges money to deny visits, deny phone, taking family from nursing homes. Letters from parent that she wants to go home, be visited, get phone calls are responded to with motions to strike, being pushed from the Daley Center, contempt orders and arguments that filings are repetitive

3. Wanting parent to avoid second hand smoke results in jail threats, arm twisting, being pushed from Daley Center by some Cook County sheriff staff. Wanting parent to avoid brief second hand smoke associated with cancer can result in harassment and false following to car allegations

4. Asking what chemicals are put into parent results in harassment allegations by Cook County guardian staff Nathan Goldensen and Sadeta Kalamperovic

5. Cook County guardian staff charges over $500 for routine services to be guardians over those who have injury or illness. Their staff charge for many concerns such as "can my parent come home" or "can my parent go to the zoo" or "can my parent go outside for Christmas services" or "where is my parent." Cook County guardian charges $18 for phone calls to them sometimes

6. Cook County guardian takes most assets essentially for their own use. Cook County guardian staff wants someone to stay in a nursing home and they use the assets for the nursing home and to dispute the right to leave the facility, go home, avoid smokers, be visited, get phone calls

7. Cook County Guardian charges money to not reimburse food, dental, optical, transportation, medical, prescription bills paid by credit card by family for the parent's care. Requests for reimbursement are responded to with jail threats sometimes

8. Cook County Guardian staff responds to concerns that they tax Boeing involved in the war in Iraq, other wars like WWII, Vietnam and Afghanistan with jail threats and confinement of parent. Boeing’s missiles dropped in many nations at Olympics and around world

9. Cook County guardian take family mail and federal court rules guardian has the right or state courts have rights and persons under guardianship do not have federal right to complain

10. Appeals about the rights to visit family, phone family and have family come home cost $200 in the Illinois Court of Appeals and $435 in the federal court. The contempt charge about trying to visit parent and have parent go home was $100. Athletes might face jail threats for trying to visit or phone or take family from certain nursing homes here.

11. Injured and some family are treated by Cook County Guardian as without rights. Cook County guardian staff Nathan Goldensen/Belko has rights to decide but none of family have

12. Nursing home director says "you will be dead if you say things like that" about contacting the US attorney about an elderly person being treated like a slave. In response to concern with “you are going to be dead” comment, access restricted for 6 months

13. Attempts to get parent fresh air away from second hand smoke is responded to with arm twisting, jail threat, 6 month access restriction and being pushed from Daley Center.

14. Nathan Goldensen asks "are you an anti-Semite," because I express concern with the County treating persons with injury like disabled were treated in the 1930's under National Socialism in Germany

15. County demands $30,000-40,000 to dispute reimbursement of bills, confine family, not let family get fresh air, come with police and take away parent's place to stay, come with police and handcuff parent for running away trying to avoid second hand smokers

16. Cook County judge tries to make concern with these issues "harm to parent," even though parent clearly says wants to live with son, phone son, visit son, go to zoo, avoid smokers, go to own doctors, likes living and being with son

17. Parent's hands and head are shaking, and Guardian responds to concern by restricting access to see parent

18. Cook County guardian Nathan Goldensen say did not receive letters from parent even though she called him and I gave letters to him. Nathan Goldensen acts like not aware of smokers, even though I say many smokers repeatedly and show pictures she is not able to get fresh air away from smokers

19. Judge, Cynthia Farenga and Nathan Goldensen respond to concerns with second hand smoke by restricting access and having sheriff take family from building. Lawyers charge to deny rights requests

20. Any incapacity, mental illness, disability can result in this treatment by the County.

21. Cook County judge restricts filing of documents about these issues

22. Cook County judge uses diagnoses or injury to take away rights to decide for self

23. Cook County guardian staff withholds records of chemicals put into person's body and takes away place to stay for issues like cold water in apartment, pipes that break in cold, broken elevator, cold temperatures, area involved in war, reimbursement requests

24. Cook County guardian staff and hosptals give shots without consent for trying to get expenses reimbursed, know what is put in body, be concerned over state taxing corporation involved in war

25. War crime concerns that state taxes corporation involved in war result in jail threats, visitation, phone restrictions and going home restrictions

26. Nursing home director says "mother probably not here" even though the person is there. Location withheld for 3 or more months



27. Nathan Goldensen and Sadeta Kalamperovic hold parent in facility for 17 months or longer and go through much of family assets. $4,300 is being charged each month at nursing home

29. Chicago Police and Sadeta Kalamperovic come and handcuff parent who was trying to avoid second hand smokers at nursing homeand ran away from County staff

Probate laws can make athletes and visitors' injuries and limitations into reasons rights lost.

Diagnoses are reasons to enslave in Illinois. Mental Illness is a reason to enslave in Illinois. Why are the 13th, 14th , 15th amendment not seen as applying to guardianship even though the actions are not that different? When persons have to appeal to the US Supreme Court to visit family, phone family, get family away from smokers, get family fresh air, have family come home, similarities with slavery are seen. Many concerns in Cook County court are responded to with jail threats and being pushed from the Daley Center.

After you go to the doctor in the United States or at least Illinois, the determination of a diagnosis is legally used to strip you of a number of rights and liberties. Guardians take you as property to charge you money to express all your rights. The simple fact that you are scared of "evil people" or want to say a word like "I am from Heaven" or princess might be used to make you into a slave or County property.