O'Malley v. Litscher

• Decision Date: 16 October 2006
• Docket Number: No. 05-3415.,05-3415.
• Citation: 465 F.3d 799
• Parties: Robert C. O'MALLEY, Plaintiff-Appellant, v. Jon E. LITSCHER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

465 F.3d 799

Robert C. O'MALLEY, Plaintiff-Appellant, v. Jon E. LITSCHER, et al., Defendants-Appellees.

No. 05-3415.

United States Court of Appeals, Seventh Circuit.

Submitted August 16, 2006.

Decided October 16, 2006.

Robert C. O'Malley, Oshkosh, WI, pro se.

John R. Sweeney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, Douglas S. Knott, Leib &

Katt, Milwaukee, WI, for Defendants-Appellees.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

PER CURIAM.

In the spring of 2002, Wisconsin inmate Robert O'Malley embarked on what he characterizes as a religious fast. Though he continued to drink water, he stopped eating altogether because, he says, he was using the "power of prayer and fasting" to implore God to move his former accusers to recant the testimony that led to his conviction and imprisonment for sexual assault. We are skeptical that his refusal to eat really was a religious exercise; O'Malley boasted to prison staff that this "fast," like two others before it, would win him a transfer to a different prison, and he admitted in his response to the defendants' motion for summary judgment that he hoped to draw public attention to his assertion of innocence in order to attract free legal assistance. But the district court assumed that O'Malley's fast was rooted in sincere belief, and we will not disturb that assumption since it is not material to our disposition of the case. Whatever the reason for it, about three weeks into the fast, Brian Bohlmann, a prison doctor, concluded that O'Malley had become seriously dehydrated and would likely suffer significant harm if he did not receive hydration and nutrition within 48 hours. Bohlmann contacted legal counsel for the Wisconsin Department of Corrections, who filed an emergency petition in the state circuit court requesting authorization to force-feed O'Malley. After an ex parte hearing, the state court granted the authorization for a period of five days. Bohlmann ordered O'Malley confined in five-point restraints and supervised an intravenous feeding that began that evening. Also present was prison psychologist Barbara Seldin. About 21 hours later, Bohlmann concluded that O'Malley was out of danger and ended the forced feeding. O'Malley then began eating on his own, but he stopped again a few days after the expiration of the ex parte order. At that point legal counsel sought a permanent order authorizing medical staff to force-feed O'Malley. The state court granted the order after a hearing in which O'Malley was allowed to participate by telephone.

In 2004 O'Malley sued Bohlmann, Seldin, and four others associated with the prison under 42 U.S.C. § 1983. He claimed first, that the defendants deprived him of due process by obtaining the court orders without affording him a lawyer, and by securing the initial order on an ex parte basis. Second, he claimed that the defendants denied him due process by misrepresenting to the state court that he was dehydrated and thus duping the court into issuing the ex parte order on the false premise that force-feeding was medically necessary. Third, O'Malley claimed Bohlmann and Seldin violated his rights under the Eighth Amendment by acting on the ex parte order without disclosing its existence and giving him a chance to "comply" voluntarily, and by continuing the intravenous feeding even after he learned about the order and promised to eat. Fourth, O'Malley claimed that the defendants, especially Bohlmann, violated the Eighth Amendment during the force-feeding because it took several attempts to place the intravenous feeding line, his restraints left marks on his skin, he was unable to use the bathroom for the full 21 hours, and he sustained burns on his back because he vomited during the procedure and was compelled to lie in the vomit. Finally, O'Malley claimed that the defendants violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, by stopping his religious fast without a compelling reason.

The district court (a magistrate judge, sitting by consent) dismissed the suit in part for lack of subject-matter jurisdiction and granted summary judgment to the defendants on what remained. The court noted that part of the relief O'Malley sought was an injunction setting aside the state court's permanent order, a remedy that would run afoul of the Rooker-Feldman doctrine, which prohibits a federal court other than the United States Supreme Court from reviewing a state-court judgment in the absence of express congressional authorization. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); 4901 Corp. v. Town of Cicero, 220 F.3d 522, 527 (7th Cir.2000). The district court then dismissed the suit to the extent it concerned the manner in which the ex parte and permanent orders were obtained, reasoning that these issues were inextricably intertwined with the state-court judgment and therefore barred by Rooker-Feldman. The court permitted O'Malley to proceed on his Eighth Amendment and RLUIPA claims, but held that his case against four of the defendants collapsed immediately because he failed to present any evidence that those defendants were personally involved in the relevant events. The district court concluded that Bohlmann alone of the defendants was responsible for execution of the force-feeding, and explained that the undisputed evidence, which included videotapes of the procedure, established that he acted reasonably. As for the RLUIPA claim, the court held that both Bohlmann and Seldin were involved, but that neither could be held liable because they had used the least restrictive means of furthering a compelling interest in institutional security.

On appeal O'Malley does not challenge the dismissal of any defendant except Bohlmann and Seldin, nor does he challenge the dismissal of his claims as they relate to the process of obtaining the two state-court orders. These matters therefore are waived, and we need not address them. See Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 502 n. 4 (7th Cir.2005); Crestview Vill. Apartments v. United States Dep't of Hous. and Urban Dev., 383 F.3d 552, 555 (7th Cir.2004). O'Malley does challenge the district court's Eighth Amendment and RLUIPA determinations. But we disagree with the district court only in that we think more of his claims are barred by Rooker-Feldman.

To the extent O'Malley claims that the defendants violated his rights under RLUIPA by preferring intravenous feeding over allowing him to eat, his theory is baseless. As the district court points out, the choice of methods for ending the fast did not implicate O'Malley's right to religious exercise because the asserted exercise consisted of the fast alone. O'Malley does not contend that his religious views forbid intravenous feeding or require nutrition to be taken by mouth; if the defendants interfered with his right to religious exercise, they did so because of the act, not the method, of stopping his fast. And since the defeat of his fast was an injury caused by a state-court judgment, Rooker-Feldman bars any claim under RLUIPA. See Lance v. Dennis, ___ U.S. ___, ___, 126 S.Ct. 1198, 1201, 163 L.Ed.2d 1059 (2006) (per curiam); Exxon Mobil Corp., 544 U.S. at 284, 125 S.Ct. 1517; Burke v. Johnston, 452 F.3d 665, 667 (7th Cir.2006). It makes no difference that O'Malley's disagreement with the state-court order is cast in the form of a civil-rights action, see Holt v. Lake County Bd. of Comm'rs, 408 F.3d 335, 336 (7th Cir.2005) (per curiam); Crestview Vill. Apartments, 383 F.3d at 556-57; Long v. Shorebank Dev. Corp., 182 F.3d 548, 557 (7th Cir.1999); Wright v. Tackett, 39 F.3d 155, 157-58 (7th Cir.1994) (per curiam); Ritter v. Ross, 992 F.2d 750, 753-54 (7th Cir.1993), nor does it matter that O'Malley's RLUIPA argument was not made in the state proceedings, see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Long, 182 F.3d at 554; Garry v. Geils, 82 F.3d 1362, 1369 (7th Cir.1996); Ritter, 992 F.2d at 753-54.

The district court seems to believe that Rooker-Feldman is inapplicable because the defendants acted on a state-court order that was "not mandatory." We are puzzled by this since we have said repeatedly that carrying out a state court's decision is not an independent violation of the Constitution. See Holt, 408 F.3d at 336; Landers Seed Co. v. Champaign Nat'l Bank, 15 F.3d 729, 732 (7th Cir. 1994); GASH Assocs. v. Vill. of Rosemont, 995 F.2d 726, 727 (7th Cir.1993); Owens-Corning Fiberglas Corp. v. Moran, 959 F.2d 634, 635 (7th Cir. 1992); see also Homola v. McNamara, 59 F.3d 647, 651 (7th Cir.1995) ("[I]f a suit seeking damages for the execution of a judicial order is just a way to contest the order itself, then the Rooker-Feldman doctrine is in play"). More important, we do not share the district court's view that the order at issue is discretionary. The order provides that "any licensed physician, or a person acting under his direction and control, may evaluate and provide to Robert O'Malley any feeding or hydration or both, by force or otherwise, which in his or her medical judgement is advisable to prevent significant risk of serious damage or death to Robert O'Malley." The order empowered the defendants to end O'Malley's fast, and more than that, it authorized the use of force to accomplish that end. The only condition was that medical judgment be exercised; the phrase "by force or otherwise," upon which O'Malley seizes, does not introduce a discretionary element. It simply recognizes the possibility that the object of the order might not resist its execution, as indeed O'Malley insists he would not have.

And we see no other reason to doubt that Rooker-Feldman should apply. If something in the state's procedures had prevented O'Malley from raising his...