NONPRECEDENTIAL DISPOSITION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 June 29, 2011*
Decided July 8, 2011
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 10‐1189
MICHAEL LEMBERGER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 08‐3115
LARRY J. PHILLIPS, et al., Harold A. Baker,
Defendants‐Appellees. Judge.
O R D E R
Michael Lemberger, housed at the Rushville (Illinois) Treatment and Detention
Center as a sexually violent person, see 725 ILCS 207/f(5), has twice sued Rushville officials
for violating his right to practice Judaism under the First Amendment and the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc‐1(a). He appeals the
dismissal with prejudice of his second action, which the district court thought duplicative of
his first. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐1189 Page 2
In the first action, Lemberger v. Freeman, No. 08‐3038 (C.D. Ill. filed Feb. 6, 2008),
Lemberger claimed in relevant part that Rushville substantially burdened his religious
exercise by failing to provide varied, nutritionally adequate meals that he considered fully
kosher. While that action was pending in the district court, Lemberger filed a second one
covering similar terrain and asserting that Rushville officials punished his practice of
Judaism with a deliberately unappetizing kosher menu. Lemberger v. Simpson, No. 08‐3115
(C.D. Ill. filed May 15, 2008).
After allowing for discovery, the district court disposed of both cases in successive
fashion. In December 2009 the court granted summary judgment to the defendants in the
first action, concluding that Rushville’s menu selections and the measures it took to meet
Lemberger’s dietary restrictions—preparing food in a separate area of the kitchen with
disposable utensils and trays, heating items in a separate microwave, daily serving one pre‐
packaged kosher meal, and otherwise offering vegetarian and other non‐pork dishes— were
the least restrictive means of furthering what the court characterized as the institution’s
compelling interests in controlling costs and preventing other patients from thinking that
Rushville gave Lemberger preferential treatment. The following month, the district court
dismissed the second action with prejudice, calling it “duplicative” and the issues
“identical.”
Lemberger appealed both judgments. In this appeal from the dismissal of his second
action (his appeals from the first action were dismissed, one voluntarily and one for failure
to pay docketing fees), Lemberger says nothing about the district court’s conclusion that this
action was duplicative, and instead reiterates that Rushville officials have deliberately made
the kosher menu unappetizing.
Although the district court did not use the word “preclusion” in its dismissal order,
it concluded that the most important issues in the two actions were identical. The
defendants contend, and we agree, that the district court relied on the doctrine of issue
preclusion, under which parties may not re‐litigate essential issues argued and decided in a
previous action. See Bobby v. Bies, 129 S. Ct. 2145, 2152 (2009); Carter v. AMC, LLC, ‐‐‐ F.3d
‐‐‐, ‐‐‐, 2011 WL 1812524, at *1 (7th Cir. May 13, 2011). That is the case here: the issues that
Lemberger raises have already been litigated and decided. Principally, he argued in the first
action that the facility’s kosher menu was so inadequate that it violated his religious rights,
but the district court disagreed, concluding that the menu was the lawful result of a careful
balancing of interests. Lemberger cannot show that the kosher diet at Rushville was
punitive or otherwise violated his religious rights without re‐litigating that issue, so he
cannot prevail in the second action. Although issue preclusion is an affirmative defense, see
FED. R. CIV. P. 8(c); Simpson v. Nickel, 450 F.3d 303, 306 (7th Cir. 2006), a district court may
No. 10‐1189 Page 3
raise it sua sponte if, as here, its existence is plainly apparent from the face of the complaint,
Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010); Walker v. Thompson, 288 F.3d 1005, 1009
(7th Cir. 2002).
Accordingly, the judgment is AFFIRMED.