Lindell, Nathaniel v. McCallum, Scott

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-1550
NATHANIEL LINDELL,
Plaintiff-Appellant,
v.
SCOTT MCCALLUM, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-C-473-C—Barbara B. Crabb, Chief Judge.
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SUBMITTED OCTOBER 31, 2003—DECIDED DECEMBER 12, 2003
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Nathaniel Lindell, an inmate at
Wisconsin‘s Secure Program Facility (WSPF), alleges in a 62-
page complaint that state officials and prison staff are
violating his civil rights by preventing him from practicing
his religion and forcing him to participate in programs that
violate his religious beliefs. Although he qualified to pro-
ceed in forma pauperis and, as best we can tell, has managed
to avoid accumulating three strikes on the basis of his
numerous previous lawsuits (though this is something for
the district judge to determine on remand), the judge re-
fused his request to proceed in forma pauperis, dismissed his
2 No. 03-1550
complaint even though acknowledging that it probably
states a claim, and barred him from bringing any future
lawsuit unless he can show that he can afford to prosecute
it or that he is in imminent danger of serious physical in-
jury.
Lindell claims to be a follower of Wotanism, which he also
calls Odinism or Asatru and describes as a nature-based
religion rooted in ancient Indo-European or “Aryan” tribal
culture. It is an obscure religion, but he didn’t make it up.
See J. Gordon Melton, Encyclopedia of American Religions 847-
48 (4th ed. 1994). In some versions, it declares the “Nordic
Race” the chosen people, id., implying white supremacy, but
in other versions apparently not. See “The Odinic Rite,”
http://www.odinic-rite.org/index2.html (visited Nov. 10,
2003). Lindell, however, has been described without
contradiction as an “avowed White Supremacist.”
After arriving at WSPF, he sought to have the prison
authorities acknowledge Wotanism as a religion. But they
refused, explaining that they would neither acknowledge
racist religions nor endorse groups disruptive of prison life.
Lindell charges that the prison authorities interfere with the
practice of his religion by, for example, destroying mail
having Wotanist religious content, ignoring Wotanist
dietary restrictions, housing Wotanists in separate living
areas so that they cannot congregate or discuss their beliefs,
and excluding Wotanist literature and videos from
the religious materials available to prisoners. He claims that
by doing this the authorities infringe both his First Amend-
ment right to exercise his religion freely and the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc. This appears to be his tenth suit against the
Wisconsin prison system and the sixth in federal court.
No. 03-1550 3
The district judge reviewed Lindell’s prison trust fund
records and acknowledged that Lindell was unable to pre-
pay the entire filing fee. But rather than grant his petition
for leave to proceed in forma pauperis, 28 U.S.C. § 1915(a)(1),
she took the complaint under advisement for later screening
under section 1915(e)(2). That subsection authorizes dis-
missal at any time if a complaint is frivolous, malicious, or
fails to state a claim. But in her subsequent review
of Lindell’s complaint the judge concluded that several
of his “claims under R.L.U.I.P.A. are likely to survive
screening, even if some of his Constitutional claims fail.”
Nevertheless she denied him pauper status and refused to
allow his complaint to be filed because
I do not intend to allow petitioner to begin another
lawsuit that he cannot afford to prosecute. . . . He avoids
the restraints Congress intended to place on frivolous
prisoner litigation under 28 U.S.C. § 1915(g) by loading
his complaints with so many issues that a handful
inevitably survive the liberal pleading review applicable
to pro se litigation. . . . Once a lawsuit has begun, it is
almost impossible to predict how much it will cost to
prosecute it. It is evident, however, that plaintiff will not
be able to pay the cost of mailing, let alone photocopy-
ing, for this case and nine others without exceeding his
legal loan limits. If he is allowed to file this suit, the
costs of prosecuting it will reduce the funds available to
prosecute his other cases, leaving courts in the quan-
dary of having to choose between dismissal or an order
directing the state to advance funds to petitioner in
excess of the statutory limit. To avoid this, I will deny
petitioner leave to proceed in forma pauperis. If petitioner
wants to bring another lawsuit in this court, he will
have to show first that he has the money to prosecute
the suit to completion or that he is under imminent
danger of serious physical injury if the lawsuit is not
4 No. 03-1550
allowed. As a practical matter, petitioner will be unable
to make the financial showing required so long as he
has any other lawsuit pending in this district.
Lindell argues that because he has no history of frivolous
litigation, the district judge abused her discretion when she
dismissed this suit and barred future suits.
The district judge found that Lindell had established the
requisite indigence, 28 U.S.C. § 1915(a), (b)(1), and had not
accumulated the three strikes (indeed, any strikes) that
would prevent him from proceeding in forma pauperis
despite his indigency. § 1915(g). All that was left for the
judge to do was to review the complaint to determine
whether it was frivolous or malicious, failed to state a claim,
or sought damages from an immune defendant. §§ 1915(e),
(g), 1915A. Because Lindell is seeking injunctive relief for
continuing violations of his civil rights, as well as damages
for past violations, immunity could not be a complete bar to
his suit. Williams v. Wisconsin, 336 F.3d 576, 580-81 (7th Cir.
2003); MCI Telecommunications Corp. v. Illinois Bell Tel. Co.,
222 F.3d 323, 337 (7th Cir. 2000).
Lindell’s complaint indeed states a claim under RLUIPA,
and we are given no reason to believe that it might nonethe-
less be frivolous or malicious. Hutchinson v. Spink, 126 F.3d
895, 900-01 (7th Cir. 1997); Gammon v. GC Services Limited
Partnership, 27 F.3d 1254, 1256 (7th Cir. 1994); Horsey v.
Asher, 741 F.2d 209, 213 (8th Cir. 1984). “Malicious” in this
context is sometimes treated as a synonym for “frivolous,”
e.g., id. at 213, but we think is more usefully construed as
intended to harass. E.g., Pittman v. Moore, 980 F.2d 994, 995
(5th Cir. 1993); Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C.
Cir. 1981); Philips v. Carey, 636 F.2d 207, 208-09 (10th Cir.
1981) (per curiam); Spencer v. Rhodes, 656 F. Supp. 458, 464
(E.D.N.C. 1987).)
No. 03-1550 5
Enacted in 2000 in the wake of City of Boerne v. Flores, 521
U.S. 507 (1997), which had limited the applicability of the
Religious Freedom Restoration Act to federal officers and
agencies, O‘Bryan v. Bureau of Prisons, No. 02-4012, 2003 WL
22533454, *1-2 (7th Cir. Nov. 10, 2003), RLUIPA forbids (so
far as bears on this case) prisons that receive federal funding
to burden a prisoner‘s exercise of religion substantially
unless the prison both has a compelling interest and em-
ploys the least restrictive means possible for protecting that
interest. 42 U.S.C. § 2000cc-1. Charles v. Verhagen, No. 02-
3572, 2003 WL 22455960 at *7 (7th Cir. Oct. 30, 2003), and
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002), hold
that 42 U.S.C. § 2000cc-1 is a valid exercise of Congress‘s
power under the Spending Clause, U.S. Const. art. I, § 8, cl.
1, although Cutter v. United States, Nos. 02-3270 et al., 2003
WL 22513973, at *10 (6th Cir. Nov. 7, 2003), holds that
section 2000cc-1 violates the First Amendment‘s establish-
ment of religion clause.
The Wisconsin prison system receives federal funding,
Charles v. Verhagen, supra, at *2, so to state a claim under
RLUIPA a Wisconsin prisoner need allege only that the
prison has substantially burdened a religious belief, which
Lindell has done. We are given no reason to think that the
fact that Wotanism is not a mainstream religion is disqual-
ifying, see Thomas v. Review Board, 450 U.S. 707, 714 (1981);
Dettmer v. Landon, 799 F.2d 929, 932 (4th Cir. 1986);
International Society for Krishna Consciousness, Inc. v. Barber,
650 F.2d 430, 440 (2d Cir. 1981); Rust v. Clarke, 851 F. Supp.
377, 378 (D. Neb. 1995) (Asatru/Odinism), though that is
another issue we need not decide; and while the Wisconsin
prison authorities may be able to demonstrate a compelling
interest in suppressing it if indeed it is racist, Ochs v.
Thalacker, 90 F.3d 293, 296-97 (8th Cir. 1996); cf. Sasnett v.
Sullivan, 91 F.3d 1018, 1023 (7th Cir. 1996); Harris v. Chap-
man, 97 F.3d 499, 504 (11th Cir. 1996); Stefanow v. McFadden,
6 No. 03-1550
103 F.3d 1466, 1472-74 (9th Cir. 1996); Marria v. Broaddus,
2003 WL 21782633, *14-18 (S.D.N.Y. July 31, 2003), they have
made no attempt to do this, the case having been dismissed
without any submission by the defendants. Cf. Hutchinson
v. Spink, supra, 126 F.3d at 899-900.
We sympathize with the frustration of the able and busy
district judge faced by Lindell’s repeated complaints stuffed
with material that is irrelevant and difficult even to under-
stand. But the Federal Rules of Civil Procedure provide a
remedy that is not the remedy the judge chose. If a com-
plaint‘s length and lack of clarity make it unintelligible,
dismissal under Fed. R. Civ. P. 8(a) is permitted, United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378
(7th Cir. 2003); Davis v. Ruby Foods, Inc., 269 F.3d 818 (7th
Cir. 2001); Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir.
2000); In re Westinghouse Securities Litigation, 90 F.3d 696, 703
(3d Cir. 1996); Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993),
though leave to replead should ordinarily be granted. 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1281 (2003). The district judge might have done
that here but instead she undertook to screen the complaint,
and having done so found that it states a claim under
RLUIPA—at which point she couldn‘t dismiss the entire suit
“merely because [the complaint] contains repetitious and
irrelevant matter, a disposable husk around a core of proper
pleading,” Davis v. Ruby Foods, Inc., supra, 269 F.3d at 820,
although she could of course have dismissed any parts of
the complaint that do not state a claim.
The judge expressed concern regarding Wisconsin‘s sub-
sidization of Lindell‘s litigation costs through a program
that advances funds to inmates for expenses such as filing
fees, paper, and postage. Wis. Adm. Code § DOC 309.51;
Luedtke v. Bertrand, 32 F. Supp. 2d 1074, 1076 (E.D. Wis.
1999). Determining that Lindell has already borrowed more
No. 03-1550 7
than the statutory limit of $200 a year, the district judge
enjoined him from litigating further, lest she have to order
Wisconsin to lend him more money. But there is no possibil-
ity that she would have to order Wisconsin to lend him a
penny. The Wisconsin statute is not intended for the
funding of prisoners‘ suits—as explained in the Luedtke case,
the loans authorized by the statute are not “funds which are
disbursed or credited to an inmate‘s account to be used as
he wishes” but rather “simultaneous credits and debits . . .
for the sole purpose of enabling prisoners to purchase
‘paper, photocopy work, or postage‘ on credit.” And Lindell
has “no constitutional entitlement to subsidy,” Lewis v.
Sullivan, 279 F.3d 526, 528 (7th Cir. 2002), to prosecute a civil
suit; like any other civil litigant, he must decide which of his
legal actions is important enough to fund. Lucien v. DeTella,
141 F.3d 773, 774 (7th Cir. 1998). If he is able to convince
Wisconsin to extend him more credit for his legal endeav-
ors, in apparent violation of Wisconsin law, any debt arising
from that extension of credit will be a matter strictly
between him and Wisconsin, and not any business of the
federal courts.
Lindell’s remaining arguments have insufficient merit to
warrant discussion. Nevertheless, as we have explained, the
judgment must be, and it is, vacated, and the case remanded
for further proceedings.
8 No. 03-1550
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-12-03