W. Stephen Lush , Ii v. Board of Trustees of Northern Illinois University

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1394
W. S TEPHEN LUSH , II,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF NORTHERN I LLINOIS U NIVERSITY , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:20-cv-50421 — Iain D. Johnston, Judge.
____________________
S UBMITTED M ARCH 10, 2022∗ — DECIDED M ARCH 29, 2022
____________________
Before WOOD, S CUDDER , and J ACKSON -A KIWUMI , Circuit
Judges.
SCUDDER , Circuit Judge. Stephen Lush II brought claims in
federal court after unsuccessfully pursuing many of those
∗We have agreed to decide this case without oral argument because
the brief and record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. See FED. R. APP. P.
34(a)(2)(C)

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2 No. 21-1394
same claims in Illinois state court. When the district court
informed him that his complaint failed to state claims, faced
jurisdictional barriers, and may indeed warrant sanctions,
Lush agreed to a voluntary dismissal. But he then appealed,
wishing to challenge prior rulings the district court made
denying his requests for the recruitment of counsel and to seal
everything filed in the case. What Lush fails to recognize is
that his voluntary dismissal—his walking away from the case
he brought—leaves us with no appellate jurisdiction to
consider these interlocutory rulings. This outcome reflects the
harsh reality that can accompany an uninformed decision
made by someone doing his best to represent himself but
without the legal training to do so effectively. We have no
choice but to dismiss the appeal.
I
Lush started at the Northern Illinois University College of
Law in 2003. Poor academic performance, perhaps owing to
mental-health struggles, resulted in the University dismissing
Lush after his first year. Lush responded with litigation, suing
the University in state court to recover his tuition and other
alleged damages, and to purge his academic transcript. He
also sought injunctive relief to prescribe the way the Univer-
sity handles matters relating to the mental health of its stu-
dents.
The state court litigation did not go well for Lush. The first
of Lush’s lawsuits ended with an Illinois court entering judg-
ment for the defendants. In time Lush brought additional law-
suits advancing similar claims, and those other cases ended
the same way.

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No. 21-1394 3
In 2020 Lush turned again to federal court. He sued the
University’s Board of Trustees, individual trustees, and the
State of Illinois, alleging a range of violations under the Amer-
icans with Disabilities Act and provisions of other federal
laws, civil and criminal. Lush accompanied his complaint
with a request for the recruitment of counsel. For its part, the
Board moved to dismiss the complaint as not only untimely,
but also barred by principles of claim preclusion based on the
prior cases Lush brought in state and federal court. Lush re-
sponded by filing an amended complaint which, in turn,
prompted the district court to deny the Board’s motion to dis-
miss as moot.
Fulfilling the screening obligation imposed by 28 U.S.C.
§ 1915(e)(2), the district court entered an order observing that
the claims in the amended complaint were precluded by the
Rooker-Feldman doctrine and, in any event, untimely given
that Lush brought the federal action some 16 years after the
events in question. So, too, did the district court observe that
Lush’s allegations fell short of stating any claim for relief. The
district court then ordered Lush to show cause why the
amended complaint should not be dismissed, while alterna-
tively giving him the option of voluntarily dismissing the ac-
tion to avoid potential sanctions under Federal Rule of Civil
Procedure 11.
Lush’s initial response was to renew his request for coun-
sel, which the district court denied. From there Lush re-
sponded by agreeing to voluntarily dismiss his amended
complaint and asking the district court to seal the entire case.
The district court denied the request to seal and dismissed the
case. The dismissal was “with prejudice,” undoubtedly re-
flecting the district court’s view that Lush’s renewed effort to

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4 No. 21-1394
relitigate his claims faced multiple insurmountable barriers
that rendered futile any wish Lush may have had to further
litigate.
This appeal followed, with Lush limiting his challenge to
the district court’s denials of his motions to appoint counsel
and to seal the case file.
II
Lush’s appeal is a prime example of a pro se litigant strug-
gling to navigate the judicial system. To our eye, Lush seems
intent on taking another shot at litigation—assisted by re-
cruited counsel—without understanding that too many legal
barriers stand in the way of any attempt to renew his prior
claims.
His prior efforts to litigate in Illinois state court ended in
adverse judgments against him. As the district court ob-
served, the Rooker-Feldman doctrine almost surely prevents
those judgments from being collaterally challenged or set
aside through subsequent federal court litigation. See District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476
(1983); Rooker v. Fid. Tr. Co., 263 U.S. 413, 415–16 (1923). Nor
is it clear that Lush appreciates other barriers that would
stand immediately behind clearing the Rooker-Feldman hurdle
including, for example, showing that his claims were timely
and not barred by principles of claim preclusion. See Daza v.
State, 2 F.4th 681, 683–84 (7th Cir. 2021) (explaining that a
prior judgment on the merits precludes a subsequent action
advancing the same claims and ones that could have been
brought in the first action).
Even more, though, Lush took an affirmative step in the
district court that precludes any appeal of the two

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No. 21-1394 5
interlocutory rulings he presses in his brief. He agreed to a
voluntary dismissal of his lawsuit, thereby dropping and
walking away from his case in the district court. And once he
received that dismissal and saw that the district court entered
it “with prejudice,” he took no step under Federal Rule of
Civil Procedure 60 or otherwise to challenge the court’s order.
Lush’s voluntary dismissal had a jurisdictional conse-
quence: the voluntary dismissal did not result in an adverse
final judgment from which Lush may appeal the interlocutory
rulings he now wishes to challenge. See Palka v. City of Chi-
cago, 662 F.3d 428, 436 (7th Cir. 2011) (citing other cases reach-
ing the same conclusion and explaining that “it makes no dif-
ference whether the dismissal under Rule 41(a) was with or
without prejudice” because “when the district court granted
[the plaintiff’s] motion for voluntary dismissal, [he] received
the precise relief he requested” and thus “may not appeal”);
see also 8 James Wm. Moore, Moore’s Federal Practice
§ 41.40[11][b] n.129 (3d ed. 2021) (collecting cases likewise
concluding that the voluntary dismissal of a civil action pre-
cludes an appeal); accord Microsoft Corp. v. Baker, 137 S. Ct.
1702, 1707 (2017) (employing similar reasoning and holding
in the class action context that voluntary dismissals are not
appealable as a way of challenging an adverse interlocutory
ruling on one or another aspect of Rule 23’s class certification
requirements).
Because Lush received the precise relief he requested—
dismissal—he cannot now challenge the district court’s non-
dispositive interlocutory rulings denying his requests for
counsel and to seal all case filings. See Palka, 662 F.3d at 436.
Today’s outcome may be difficult for Lush to accept, as he
may have been of a mind that a voluntary dismissal would

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6 No. 21-1394
permit future litigation, including on appeal—not preclude it.
That view was uninformed, though, and almost surely reflects
the reality and limitations of his proceeding without the ben-
efit of a lawyer able to explain to him that jurisdictional and
other barriers identified by the district court preclude any fur-
ther effort to litigate (indeed, relitigate) his claims. Lush had
no legal right to counsel, though, and every day district courts
face the consequential task of deciding what circumstances
warrant the appointment of counsel. See Pruitt v. Mote, 503
F.3d 647, 649, 654 (7th Cir. 2007) (en banc). It is clear that the
district court denied Lush’s request for counsel because of the
futility of allowing another federal pleading on the matters
alleged in this most recent complaint.
We therefore DISMISS Lush’s appeal for lack of appellate
jurisdiction.

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