Adama Njie v. Joseph Yurkovich, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. We VACATE the judgment of the district court and REMAND for proceedings consistent with this order. We DENY the motion for a temporary restraining order filed on January 2, 2018. One matter remains. Njie filed a motion for counsel in this court. We DISMISS that motion as unnecessary in light of the result here. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6893974-2] [6869890-2] [6894498-1] [6894498] [17-2126]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2017*
Decided January 5, 2018
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-2126
ADAMA NJIE,
Plaintiff-Appellant,
v.
JOSEPH YURKOVICH, et al.,
Defendants-Appellees.

Appeal from the United States District
Court for the Central District of Illinois.
No. 16-C-4223-JES
James E. Shadid,
Chief Judge.

ORDER
Adama Njie, a practicing Rastafarian, brought suit under 42 U.S.C. § 1983 against
18 officials and staff members at the Hill Correctional Center. He alleged that the
defendants interfered with his right to freely exercise his religion in violation of the
First, Eighth, and Fourteenth Amendments, and unjustifiably placed a substantial
burden on his religious practices in violation of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc-5. The district
We agreed to decide this case without oral argument because the briefs 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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judge dismissed the action at screening, holding that it was frivolous and malicious
because Njie had pleaded identical claims in a separate lawsuit pending before the same
judge, Njie v. Godinez, No. 14-1079-JES (C.D. Ill. Aug. 2, 2017). Because not all the claims
in this complaint are duplicative, we vacate the district court’s judgment.
Njie is a practicing Rastafarian. He asserts that his religious observance requires
that his hair grow freely, that he attend regular services at the Rastafarian chapel, and
that he abide by strict dietary laws known as the Ital diet. See Reed v. Faulkner, 842 F.2d
960, 962 (7th Cir. 1988) (summarizing principal doctrines of Rastafarianism). In
March 2014 Njie filed a § 1983 claim (Njie I) against 11 defendants, including some of
the named defendants in this case, claiming violations of his First, Eighth, and
Fourteenth Amendment rights, as well as violations of RLUIPA. In that first suit, he
alleged in relevant part that prison staff denied a contact visit in February 2012 because
of his dreadlocks, failed to offer regular Rastafarian chapel services, confiscated
religious articles from the Rastafarian congregation, and refused to provide Ital food.
He also alleged that the defendants burdened his religious practices in retaliation for his
filing grievances at the prison. At screening, 28 U.S.C. § 1915A, the district judge
allowed Njie to proceed on claims of retaliation, violations of free exercise of religion
and equal protection, and a claim for injunctive relief under RLUIPA against three of
the named defendants: Wayne Steele, Joseph Yurkovich, and John Brand. The claims
against the remaining defendants were dismissed for failure to state a claim.
See § 1915A(b)(1).
On January 5, 2015, Njie filed a motion for a temporary restraining order and a
preliminary injunction in Njie I, asserting that one of the defendants told him that his
dreadlocks were to be cut. A week later the judge requested a response within ten days.
The response admitted that Njie had been “put on notice” that his hair would be cut but
argued that this would not violate his rights. Njie filed a reply, and after getting no
response from the court, he filed another emergency motion for a TRO in February.1
Remarkably, the defendants went forward with the haircut before the judge ruled on
the pending motions: On February 17 a “tactical team” forcibly removed Njie from his
cell in segregation (where he was placed for refusing a haircut), shackled and restrained
The district court’s docket shows that the emergency motion was “entered” on
February 18, 2015, indicating the date on which the scanned document was uploaded to
the CM/ECF system. But the motion is dated February 10 and was likely received by the
court before February 18 because the motion sought to enjoin a haircut that by
February 18 had already occurred.
1

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him while a barber cut off his dreadlocks. Njie’s TRO requests were mooted by this act,
but the judge gave Njie 21 days to amend his complaint to include “a claim or claims”
related to the involuntary haircut. In his instructions the judge advised Njie that
“piecemeal” pleading is not allowed and that the amended complaint must “stand
complete” and “contain all claims against all defendants.”
More than a year later on May 9, 2016, Njie amended his complaint to include
claims that the forcible cutting of his hair was unconstitutional. He added six
defendants, including members of the tactical team, and made more factual
allegations—specifically that on October 16, 2014, he was denied a contact visit because
of his dreadlocks and that he was placed in confinement after refusing to cut his hair.
Njie also asserted new claims of conspiracy and retaliation (this time for filing the
lawsuit rather than filing grievances). The judge characterized the amended complaint
as a motion for leave to amend and sua sponte struck the amended complaint in its
entirety. In a summary order, the judge stated that Njie could not join unrelated claims
against unrelated defendants in a single lawsuit. See George v. Smith, 507 F.3d 605, 607
(7th Cir. 2007).
The case proceeded on the claims in the original complaint that survived
screening. On May 11, 2016, the court held a hearing on Njie’s motion for a preliminary
injunction. Warden Stephanie Dorethy testified that Hill has a policy requiring inmates
with “unsearchable” hair to voluntarily cut their hair or be subject to an involuntary
cutting. She explained that thick dreadlocks raise security concerns because they can be
used to conceal weapons or other contraband. Based in large part on Dorethy’s
testimony, the judge denied the request for a preliminary injunction. He concluded that
the prison’s grooming policy did not violate the constitution or unduly burden the
exercise of religion. The policy, said the judge, furthered the compelling governmental
interest of prison security and could not be accomplished through less restrictive
means. Following discovery, the defendants moved for summary judgment, which was
granted on August 2, 2017. Njie appealed the final judgment, but he failed to pay the
docketing fee and his appeal was dismissed.
While Njie I was still pending, Njie filed this lawsuit (Njie II). In his new
complaint, Njie alleges that 18 defendants violated his constitutional rights and
RLUIPA. He asserts that in their individual capacities, the defendants denied an Ital
diet; denied visitation rights on October 16, 2014; forcibly cut his dreadlocks in February
2015; and wrongfully issued a disciplinary ticket for refusing to cut his dreadlocks. He

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also claimed that these acts were part of a conspiracy and done in retaliation for his
filing of Njie I.
The judge dismissed the complaint in Njie II at screening. He found that Njie
impermissibly brought claims identical to those he asserted in Njie I, citing the claims
that the defendants refused to provide him an Ital diet; that he was denied a contact
visit on October 16, 2014 (though the complaint in Njie I pertained to a contact visit he
was denied in February 2012); and that certain defendants failed to respond to his
letters and grievances. The judge also rejected the claims regarding Njie’s “kidnapping”
(i.e. segregation) and the forcible cutting of his dreadlocks because, first, the judge
explained, he had given Njie leave to amend his complaint in Njie I to bring that claim
and he did not do so; and, second, he had already upheld the policy in the order
denying Njie’s motion for a preliminary injunction. The judge also rejected the claim
that Njie had been issued an illegitimate disciplinary ticket for refusing to cut his hair
because Njie freely admitted that he refused to cut his dreadlocks.
A district court is permitted to dismiss a complaint at screening if it is frivolous,
malicious, or fails to state a claim upon which relief may be granted. § 1915A(b)(1).
“Malicious” means “intended to harass,” and “frivolous” means obviously lacking
merit. See Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003); Lee v. Clinton, 209 F.3d
1025, 1026 (7th Cir. 2000). In the screening order, the judge found that Njie had filed a
lawsuit that was both malicious and frivolous because he impermissibly brought
identical claims in two different cases.
On appeal Njie argues that his complaint was improperly dismissed because he
filed the new complaint only after the judge told him he had to file a separate suit,
instead of amending the complaint in Njie I, to add “unrelated” claims. He contends
that this second complaint could not possibly assert duplicative claims because they are
largely the same ones the district court concluded were “unrelated” in Njie I.
Describing the claims as “identical” in one order and “unrelated” in another
created a scenario in which Njie could not win, regardless of his efforts to follow the
judge’s guidance to file a new case. That confusion was compounded by the judge’s
express instruction that Njie get “all claims against all defendants” into his amended
complaint in Njie I. The judge did not limit that instruction to the forced-haircut issue,
but when Njie filed the amended complaint (albeit after the deadline set by the court),
the judge balked at the volume of claims and defendants. It also bears mention that the
amended complaint included claims arising out of the first haircut, as instructed, and

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although it was the judge who rejected that whole pleading, he later said that Njie did
not file an amended complaint. Given the confusing circumstances, it was error to
conclude that Njie was acting “maliciously” when it appears he was trying in good faith
to follow the judge’s instructions by filing the second case.
Further, the judge dismissed the complaint in Njie II as frivolous based on the
erroneous premise that all the claims are identical to those at issue in Njie I. But they are
not. For instance, Njie complains in the second suit that the denial of a contact visit in
October 2014 was unlawful; in Njie I he had complained about a denial in
February 2012. Though both times the defendants disallowed the visits because of the
dreadlocks policy, at a minimum the separate incidents involved different defendants,
all sued in their personal capacities. See Conner v. Reinhard, 847 F.2d 384 (7th Cir. 1988)
(holding that officers sued in their personal capacities are not in privity with the
government). As another example, the complaints in Njie I and Njie II both claimed
retaliation by the defendants, but the latter pegs new retaliatory acts to the filing of the
first lawsuit. Njie alleges that after he filed his first complaint, “the defendants took
their retaliatory acts to a whole different level,” placing him in segregation and forcibly
cutting his hair. Nothing in Njie I addresses acts performed in retaliation for filing that
very lawsuit. And of course the forced haircut itself was not part of the first case. These
examples are enough to show that the Njie II claims are not all plainly lacking merit, so
the complaint should not have been labeled frivolous.
We acknowledge that some overlap exists between the original complaint in Njie
I and the complaint in this case. But “[n]o rule of federal law requires the dismissal of a
second or successive civil suit, even if another concerning the same controversy is
pending.” Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002). Instead, when confronted
with parallel lawsuits, we have advised courts to stay successive actions, rather than
dismiss them, unless it is clear that dismissal cannot adversely affect any litigant’s
interest. Id.; Cent. States, Se. & Sw. Areas Pension Fund v. Paramount Liquor Co., 203 F.3d
442, 444 (7th Cir. 2000) (citing Deakins v. Monaghan, 484 U.S. 193, 202–04 (1988)). But see
Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223–24 (7th Cir. 1993) (upholding dismissal
when suit is duplicative, meaning “claims, parties, and available relief do not
significantly differ between the two actions”). Dismissing the complaint in this case
with prejudice adversely affected Njie’s interests by denying him an opportunity to
assert his additional claims when instead this case should have been stayed pending
resolution of his first lawsuit.

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Even though Njie’s complaint was dismissed prematurely and for the wrong
reasons, new wrinkles have arisen from events since he first filed Njie II—the denial of
the preliminary injunction motion and entry of final judgment in Njie I. Specifically,
now certain claims or issues might be barred by claim preclusion or issue preclusion.
But the only question before us is whether the judge erred in dismissing the complaint
in Njie II. Because the complaint is neither frivolous nor malicious, our answer is
affirmative.
Finally, while we’ve had this appeal under advisement, Njie moved this court for
a temporary restraining order enjoining prison staff from again forcibly cutting his
dreadlocks. He writes that the warden and others have indicated that it is time for
another haircut. Because we are remanding the case for further proceedings, we deny
the motion, though Njie may refile it in the district court on remand.
Accordingly, we VACATE the judgment of the district court and REMAND for
proceedings consistent with this order. We DENY the motion for a temporary
restraining order filed on January 2, 2018. One matter remains. Njie filed a motion for
counsel in this court. We DISMISS that motion as unnecessary in light of the result here.