# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted July 30 , 2018 * Decided August 16 , 2018

Before

DIANE P. WOOD
, Chief Judge

ILANA DIAMOND ROVNER
, Circuit Judge

DIANE S. SYKES
, Circuit Judge

No. 17

- 1962

RALPH MLASKA
, Plaintiff

- Appellant
,

v

.

LOUIS SCHICKER, et al.
, Defendant s

- Appellee s

. Appeal from the United States District Court for the Southern District of Illinois.

No. 15

- cv

- 0918

- MJR

- SCW

Michael J. Reagan
, Chief Judge

.

O R D E R

Ralph Mlaska, formerly a prisoner at Shawnee Correctional Center, suffers from chronic penile and testicular pain. He has filed several actions in state and federal court against prison staff and the prison’s contracting healthcare provider, asserting that he received inadequate medical care in violation of his constitut ional rights

. The case before

us

— Mlaska’s most recent federal suit

— was dismissed with prejudice because Mlaska did not comply with court orders and filed “verbose and incoherent pleadings” that

* We have 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 F ED

. R. A PP

. P

. 34(a)(2) (C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 1962 Page 2

impeded the court’s ability to address the merits of the case. See F ED

. R. C IV

. P. 41(b). Although we disagree with the dismissal of the case as a sanction , we affirm the judgment because Mlaska’s claims are barred by the doctrine of res judicata.

Mlaska alleges that his condition is attributable t o an unrelated medi cation that causes painful and prolonged erections as a side effect

. While on the medication, he felt fluid draining and began to experience pain in his abdomen and “scrotal areas.” The prison scheduled consultations with urologists and arranged for diagnostic testing, but the doctors found no physical abnormalities that would explain Mlaska’s symptoms

. Dissatisfied with his care, Mlaska filed a state

- court action in January 2015, alleging that prison officials and medical staff were deliberately ind ifferent to his chronic penile pain, conspired to alter medical records so that he would be denied effective medical treatment, and retaliated against him with improper medical care for filing previous lawsuits. A state judge announced that he intended to dismiss Mlaska’s claims with prejudice, and one month later Mlaska brought the same c laims in thi s lawsuit, adding defendant Mary Miller, a healthcare administrator at Danville (Mlaska’s former prison)

. Anticipating that a fina l state

- court judgment might trigger the doctrine of res judicata and preclude litigation in federal court, t he judge twice granted the defendants’ motion s to stay proceedings to await completion of the state suit

. (The stay was briefly lifted in between.) In ruling on the motions, the judge relied on his “inherent” power to stay a

case

. S ee 28 U.S.C. § 1738 ; Texas Independent Producers & Royal Owners Ass’n v. EPA , 410 F.3d 964, 980 (7th Cir. 2005) . N either the defendants nor the judge mentioned Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)

— the doctrine that permits a federal court to halt proceedings and defer to a parallel state case as a matter of “wise judicial administration.” Adkins v. VIM Recycling, Inc. , 644 F.3d 483, 497

– 98 (7th Cir. 2011) (quoting Colorado River , 424 U.S. at 818). During both stays, Mlaska filed several voluminous motions, including requests to begin discovery and “notices” imploring the court to lift the stay and proceed with the

case . All of t he motions were denied as “ moot ” in light of the stay

. Mlaska’s state case ended with a final judgment in favor of the defendants. Once notified, t he district judge ordered Mlaska to inform the court of his intention to appeal the state judgment , and later extended the deadline at Mlaska’s request

. The purpose of the orders, the judge explained, was to assess whether a final state

- court judgment existed to support the defendants’ res judicata defense. In the second order, the district judge instructed Mlaska to include in his response only specific information about his state case , including case numbers, deadlines
, and his intent to appeal

. The judge warned: “[f]urther delays will not be tolerated, and could result in dismissal.” Mlaska responded wi thNo. 17

- 1962 Page 3

another flurry of verbose fili ngs. N one contained ca se numbers, deadlines , or a clear

statement of his intent to appeal

. The district judge dismissed the action with prejudice for failure to comply with a court order. See F ED

. R. C IV

. P. 41 (b). Repeating old patterns, Mlaska filed several post

judgment motions, alleging that dela ys in the prison’s mail system were to blame for his noncompliance because he did not receive the court order until after the deadline had passed

. The judge summarily den ied these motions

. On appeal Mlaska argues that the district judge abused his discretion when he dismissed the case for failure to follow court orders because it was impossible for him to comply with them

. The judge did not test Mlaska’s representation tha t he did not receive the orders requesting information about his state ca se until after the deadline to respond had passed. Never receiving the order s , for reasons beyond his control, is a compelling

reason not to respond

. See Link v. Wabash R. Co. , 370 U.S. 626, 636 (1962) (citing Societe Internationale Pour Participations Industrielle et Commercials, S.A. v. Rogers , 357 U.S. 197, 211 (1958) (remarking that failure to follow court order for circumstances beyond petitioner’s control does not warrant dismissal) ).
Moreover, Mlaska’s next argument , that his motions to recruit c ounsel should have been granted
, weighs against dismissing his case as a sanction because he might have been prejudiced by the lack of counsel. Mlaska first moved for recruitment of counsel when he filed his amended complaint in Se ptember 2015. Having received no ruling, he filed a second motion in February 2016, while the defendants’ first motion to stay the case was pending. The district judge declared the second motion “moot” y et “still pending,” and within days stayed the case. Finally, as part of the judge’s final order dismissing the
case as a sanction

— issued fifteen months after the first motion had been filed

— he summarily denied the first motion. That was an abuse of discr etion, both because the judge failed to rule on the request, Childress v. Walker , 787 F.3d 433, 443 (7th Cir. 2015), and because he did not address the relevant factors under Pruitt v. Mote , 503 F.3d 647 (7th Cir. 2007).

Left to wonder if his motion to recruit counsel would be granted , Mlaska struggled to litigate his case properly on his own and caused significant frustration along the way
, leading to conflicts that were later used to justify invoking Rule 41(b)

. Indeed, the district judge acknowledged that Mlaska

— w ho clearly did not understand the concept of a stay

— w as filing irrelevant motions that were impeding the court’s work

. But Mlaska’s confusion should not be read as a “record of delay or contumacious behavior.” See Moffitt v. Ill. State Bd. of Educ. , 236 F.3d 868, 873 (7th Cir. 2001)

. To the contrary, Mlaska’s filings
, requesting discovery and urging the court to lift the stays, show his eagerness to proceedNo. 17

- 1962 Page 4

with the litigation

. Under the circumstances we do not see how the facts of this case ju stify imposing “the most severe sanction that a court may apply,” see Webber v. Eye Corp. , 721 F.2d 1067, 1069 (7th Cir. 1983), particularly when no lesser sanction was even attempted. See Moffitt , 236 F.3d at 873.

Even though Mlaska’s case should not have been dismissed as a sanction
, a remand
is not called for here because his claims are barred by the doctrine of res judicata

. See Baek v. Clausen , 886 F.3d 652, 668 (7th Cir. 2018) ; see also Kowalski v. Boliker , 893 F.3d 987, 994 (7th Cir. 2018) (permitting affirmance of dismissal “ on any ground supported by the record ”)

. In determining whether prior state

- court litigation has preclusive effect in a federal

- court action
, we look to the state’s preclusion doctrine

. See 28 U.S.C. § 1738; Adams v. A dams , 73 8 F.3d 861, 865 (7th Cir. 2013)

. Under Illinois law, res judicata requires three elements: “(1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) an ident ity of cause of action; and (3) an identity of parties or thei r privies .” Village of Bartonville v. Lopez , 7 7 N.E.3d 639, 650 (Ill. 2017).

Mlaska ultimately clarified that he withdrew his state

- court appeal a few months after the case was dismissed involuntarily ; in Illinois, that qualifies as a final judgment on the merits against him

. See DeLuna v. Treister , 708 N.E.2d 340, 344 (Ill. 1999) (citing ILCS S. Ct. R. 273). Mlaska also relies on identical facts, and some identical claims, in both his cases

. See Lutkauskas v. Ricker , 28 N.E.3d 727, 739 (Ill. 2015) (finding identify of cause of action for claims involving a single group of operative facts ). He even acknowledges in his complaint that his federal and state claims are “similar to and/or related to the same injury” because they all revolv e around his medical care at the prison. See Rein v. David A. Noyes & Co. , 665 N.E.2d 1199, 1206 (Ill. 1996). And he is right . I n his state and federal

case s Mlaska sued the defendants for denying him medical treatment in retaliation for his other lawsuits , for engaging in a conspiracy to deny him medical care (including falsifying and destroying his medical records), for being deliberately indifferent to his medical needs, and for implementing a policy that intentionally denies or delays

treatment to inmat es

. Mlaska’s other claims in his federal complaint

— challenging the “pain scale” policy used to measure an inmate’s pain level, questioning the prison medical provider’s failure to train employees, and asserting an equal

- protection claim (based on a class o f inmates who do not receive medical treatment because of “personal bias and reasons such as retaliation”)

— either restate existing claims or relate to the same facts. Finally, an identity of parties exists because Mlaska sued the same defendants in both

ac tions. T he only new defendant
, Mary Miller, is in privity with the original defendants. See Lutkauskas , 28 N.E.3d at 739

. Privity exists between parties “who adequately rep resentNo. 17

- 1962 Page 5

the same legal interests. ” People ex rel. Burris v. Progressive Land Develope rs, Inc. , 602 N.E.2d
820 , 826 ( Ill. 1992). The claim against Miller originates from allegations in the state complaint that someone from Danville was sending messages to Shawnee staff (whom he names as defendants), calling him a “trouble maker

. ” He later learned that the
messages were sent by Miller and added her to the federal

- conspiracy claim

. Thus, t he defendants in state court represented the same legal interests as Miller in the instant
action : they were all being sued for the same miscondu ct under the same legal theory

. I ndeed, Miller likely would have been included in the state action if Mlaska had discovered her identity sooner

. See Tartt v. Nw. Community Hosp. , 453 F.3d 817, 823 (7th Cir. 2006) (finding party who could have been joined in former action was in privity with named parties); Agolf, LLC v. Village of Arlington Heights , 946 N.E.2d 1 123, 1132 (Ill. App. Ct. 2011) (finding privit y where interests of parties “are so closely aligned”). Because Mlaska’s claims are precluded, his case was appropriately dismissed.

AFFIRMED