In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1305
DONALD LEE MCDONALD,
Plaintiff‐Appellant,
v.
GEORGE ADAMSON, CHAPLAIN,
ET AL.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13‐cv‐2262 — Joan B. Gottschall, Judge.
____________________
ARGUED SEPTEMBER 22, 2016 — DECIDED OCTOBER 17, 2016
____________________
Before BAUER, POSNER, and MANION, Circuit Judges.
MANION, Circuit Judge. In 2013, Illinois state prison inmate
Donald McDonald filed what should have been a typical fed‐
eral constitutional suit under 42 U.S.C. § 1983. McDonald al‐
leged that Defendants Warden Marcus Hardy, Assistant War‐
den Daryl Edwards, and Chaplain George Adamson were
2 No. 15‐1305
denying his First Amendment free exercise rights as a practic‐
ing Muslim. He sought only injunctive relief in the district
court.
McDonald’s case hit a procedural snag because three years
earlier he had filed a claim for damages based on the same
facts in the Illinois Court of Claims. More than two years later,
when he had received no decision from the Court of Claims,
he filed this case pro se in the district court. After the Court of
Claims denied McDonald’s request for relief, the district court
dismissed his federal complaint as barred by res judicata.
On appeal, defendants concede that McDonald’s suit is not
barred by res judicata. Therefore, we reverse the judgment of
the district court and remand for proceedings in conformity
with this opinion. We express no opinion regarding the merits
of defendants’ remaining arguments on appeal, which are not
properly before the court at this stage.
I. Background
Donald McDonald is an inmate at Stateville Correctional
Center in Crest Hill, Illinois. On July 23, 2010, he filed a com‐
plaint in the Illinois Court of Claims against the Illinois De‐
partment of Corrections for violation of his free exercise
rights. In his complaint, McDonald alleged, inter alia, that
Muslim inmates at Stateville are not permitted to attend
prayer service each Friday, that prison officials regularly steal
Arabic prayer cassette tapes and Muslim prayer rugs, and that
Christians are permitted to have more volunteers enter the fa‐
cility than are Muslims. He sought a damages award of $5,000
No. 15‐1305 3
and an order requiring the Department to cease violating his
religious rights.1
The Court of Claims held a hearing on McDonald’s claims,
but it then failed to issue a decision for more than two years.
While he was awaiting that decision, McDonald filed this case
in the district court on March 14, 2013. His pro se complaint
named Chaplain George Adamson, Warden Marcus Hardy,
and Assistant Warden Daryl Edwards as defendants in their
official capacities. It sought only injunctive relief. Although
the factual allegations in the federal complaint differ in some
small respects from the Court of Claims filing, McDonald
clearly considered it part of the same case he had filed in
2010.2
On July 24, 2013, the Court of Claims finally issued a deci‐
sion in McDonald’s original case. The court rejected all of
McDonald’s allegations in a terse two‐page order. The order
directly addressed only one of McDonald’s factual allega‐
tions, stating that evidence indicated that Muslim services oc‐
curred each Friday at Stateville unless the facility was on lock‐
down. Defendants then moved to dismiss the federal com‐
plaint, arguing that the Court of Claims order rendered
McDonald’s federal complaint barred by res judicata. The dis‐
trict court granted the motion, and McDonald timely ap‐
pealed.
1 Notwithstanding McDonald’s prayer for relief, the Court of Claims ac‐
tually lacks jurisdiction “to issue injunctive relief that either forbids or
compels actions by any State officer or agencies.” Knight v. State of Illinois,
65 Ill. Ct. Cl. 210, 215 (2013).
2 McDonald stated in the federal complaint that he “originally filed these
claims to the Illinois Court of Claims … .”
4 No. 15‐1305
II. Discussion
We review the grant of a motion to dismiss under Rule
12(b)(6) de novo; we accept all facts pleaded as true and draw
all reasonable inferences in McDonald’s favor. Thulin v. Shopko
Stores Operating Co., 771 F.3d 994, 997 (7th Cir. 2014).
A. Res Judicata
The doctrine of res judicata, or claim preclusion, “protects
the finality” of a judgment and “prevents parties from under‐
mining it by attempting to relitigate the claim.” Palka v. City of
Chicago, 662 F.3d 428, 437 (7th Cir. 2011). Where it applies, it
prohibits relitigation not only of claims already decided in a
prior proceeding, but also those that could have been litigated
in that proceeding based on the same operative facts. Id. To
determine whether McDonald’s federal claim is barred by the
adverse judgment in the Court of Claims, we apply the pre‐
clusion law of Illinois. See CFE Grp., LLC v. Firstmerit Bank,
N.A., 809 F.3d 346, 351 (7th Cir. 2015).
Defendants are correct to concede that McDonald’s § 1983
claim is not barred. Illinois law affords preclusive effect only
to “a final judgment rendered by a court of competent juris‐
diction.” Arlin‐Golf, LLC v. Vill. of Arlington Heights, 631 F.3d
818, 821 (7th Cir. 2011) (quoting Nowak v. St. Rita High Sch., 757
N.E.2d 471, 477 (Ill. 2001)). The Illinois Court of Claims “is not
a ‘court’ within the meaning of article VI of the Illinois Con‐
stitution of 1970.” Klopfer v. Court of Claims, 676 N.E.2d 679,
683 (Ill. Ct. App. 1997). It lacks jurisdiction to consider claims
based upon a federal statute or the federal or state constitu‐
tions. Michaelis v. Ill. Dep’t of Mental Health & Developmental
Disability, 61 Ill. Ct. Cl. 270, 272 (2008). Therefore, it is not a
No. 15‐1305 5
“court of competent jurisdiction” under Illinois preclusion
law. An adverse judgment in the Court of Claims does not bar
a subsequent § 1983 claim in federal court based upon the
same facts. The district court erred by dismissing McDonald’s
complaint as barred by res judicata.
B. Collateral Estoppel
Although they concede that res judicata is inapplicable, de‐
fendants argue for the first time on appeal that collateral es‐
toppel, or issue preclusion, bars relitigation of three of
McDonald’s factual allegations. Specifically, defendants con‐
tend that the Court of Claims conclusively resolved McDon‐
ald’s allegations regarding the lack of weekly Friday Muslim
prayer services, stolen prayer rugs, and stolen cassette tapes.
They concede that the remaining allegations in the federal
complaint are not precluded and must be addressed on re‐
mand.
We decline to reach defendants’ collateral estoppel argu‐
ment. Although they are related, res judicata and collateral es‐
toppel are not the same. See Jones v. City of Alton, 757 F.2d 878,
884 (7th Cir. 1985). Collateral estoppel “refers to the effect of
a judgment in foreclosing litigation in a subsequent action of
an issue of law or fact that has been actually litigated and de‐
cided.” Meyer v. Rigdon, 36 F.3d 1375, 1378 n.1 (7th Cir. 1994).
Therefore, it is both broader and narrower than res judicata.
Collateral estoppel is broader than res judicata because it bars
relitigation of facts conclusively determined in a previous
proceeding even if that court did not have jurisdiction over
the later claim. See Grogan v. Garner, 498 U.S. 279, 284–85
(1991) (explaining that a bankruptcy court in a dischargeabil‐
ity action would give preclusive effect to the facts underlying
a fraud judgment even though only the bankruptcy court has
6 No. 15‐1305
jurisdiction over the dischargeability action itself). It is also
narrower because res judicata bars any suit involving the same
operative facts, even if that specific cause of action was never
litigated in the first court. Arlin Golf, 631 F.3d at 821. Thus, res
judicata and collateral estoppel are separate legal doctrines.
Because collateral estoppel is a distinct affirmative de‐
fense, defendants bore the burden to raise it in the district
court and show that its application is clear on the face of
McDonald’s complaint. Adair v. Sherman, 230 F.3d 890, 894 (7th
Cir. 2000); see also Sidney Hillman Health Ctr. of Rochester v. Ab‐
bott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015) (because plain‐
tiffs need not anticipate an affirmative defense, a motion to
dismiss on such a ground should fail “[a]s long as there is a
conceivable set of facts, consistent with the complaint, that
would defeat [the defense]”). By arguing only res judicata be‐
low, defendants did not attempt to carry this burden with re‐
spect to collateral estoppel. We will not affirm a judgment
based on an affirmative defense raised for the first time on
appeal. Marshall‐Mosby v. Corporate Receivables, Inc., 205 F.3d
323, 327 (7th Cir. 2000).
III. Conclusion
Because the Illinois Court of Claims lacked jurisdiction to
decide McDonald’s federal constitutional claim, the judgment
dismissing his complaint is reversed. We decline to address
defendants’ collateral estoppel arguments raised for the first
time on appeal. The case is remanded to the district court for
proceedings consistent with this opinion. On remand, the dis‐
No. 15‐1305 7
trict court is free to grant McDonald leave to amend his com‐
plaint, and defendants may then renew their motion to dis‐
miss.3
REVERSED AND REMANDED.
3 We also leave defendants’ mootness argument for resolution on remand.
Defendants argue that McDonald’s claim regarding lack of weekly Mus‐
lim prayer services is now moot. They submit a declaration from Chaplain
Adamson stating that weekly services have been offered since January 11,
2016, and a thank you note from McDonald acknowledging the change.
Because voluntary cessation of a challenged practice does not deprive the
federal courts of jurisdiction to determine its legality, we need not address
at this point whether this evidence is sufficient to moot McDonald’s claim.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). In the event that defendants renew their motion to dismiss, the dis‐
trict court can determine in the first instance whether they have met their
“heavy burden” to persuade the court “that the challenged conduct can‐
not reasonably be expected to start up again.” Id.