                      NONPRECEDENTIAL DISPOSITION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 February 7, 2007*
                              Decided February 7, 2007

                                        Before

                           Hon. JOHN L. COFFEY, Circuit Judge

                           Hon. KENNETH F. RIPPLE, Circuit Judge

                           Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2251
                                                 Appeal from the United States
DELBERT HEARD,                                   District Court for the Northern
    Plaintiff-Appellant,                         District of Illinois, Eastern Division

      v.                                         No. 06 C 0644

ROD BLAGOJEVICH, et al.,                         Wayne R. Andersen,
     Defendants-Appellees.                       Judge.


                                      ORDER

      In this action arising under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, inmate
Delbert Heard claims that prison employees and the contract medical providers at


      *
        The appellees notified this court that they were never served with process in the
district court and would not be filing a brief or otherwise participating in this appeal.
After an examination of the appellant’s brief and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the appellant’s brief
and the record. See Fed. R. App. P. 34(a)(2).
No. 06-2251                                                                   Page 2

his institution have denied him medical care and impeded the practice of his
religion. The district court dismissed his complaint at initial screening, see 28
U.S.C. § 1915A, reasoning that Heard had committed a fraud on the court and that
his suit was malicious because the court previously had warned Heard that one of
the claims is frivolous. Because neither of these reasons can support dismissal
under § 1915A, we vacate and remand.

       Heard has been in this court before. We previously vacated the dismissal of
another complaint by him alleging that prison officials were deliberately indifferent
to his medical needs. Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001). Heard
ultimately lost that case at summary judgment, a decision we affirmed. Heard v.
Sheahan, No. 04-3162, 2005 WL 2030660 (7th Cir. Aug. 24, 2005). He then filed the
present complaint, but when the district court first received it, the court noticed
that Jackey Lee Bond, another inmate named in the caption as a co-plaintiff, had
not signed the complaint and was listed under an incorrect inmate registration
number. The court also noticed that none of the allegations in the complaint
involved Bond personally.

       Suspicious that Bond had not consented to the suit, the court issued an order
directing Bond to submit a response indicating whether he wanted to participate.
The court warned Heard that, if he had named Bond as a plaintiff without Bond’s
consent, his suit would be subject to dismissal for fraud on the court. In this same
order the district court observed that Heard’s claim under RLUIPA—that the
refusal to allow him conjugal visits with his wife was impeding his practice of
religion—tracked a parallel constitutional claim that he tried to litigate in an
earlier suit. In the prior suit the court had admonished Heard that the claim was
frivolous, and this time the court warned Heard that by bringing the claim again,
he was exposing himself to the possibility of sanctions under Federal Rule of Civil
Procedure 11. The court concluded by dismissing Heard’s complaint without
prejudice so that he could remove any named plaintiff who did not wish to proceed
and excise any claim he did not wish to pursue. Finally, the court noted that
neither Heard nor Bond had paid the filing fee. The court concluded that each had
to pay the full fee, and gave Heard thirty days to either pay the fee or file an
application to proceed in forma pauperis. The court told Bond that he would have
to pay the full fee if he wanted to continue as a party because he already had three
strikes. See 28 U.S.C. § 1915(g).

       Heard responded to this order by filing an amended complaint that lists only
himself as plaintiff but retains the RLUIPA claim concerning the refusal to allow
conjugal visits. He also paid the full filing fee. A few weeks later Bond informed
the district court in writing that he did not know Heard, had no knowledge of the
lawsuit, and did not wish to participate in the litigation. Heard replied that Bond
was lying. He speculated that Bond had wanted to avoid the consequences of being
a three-striker and was hoping that by joining Heard’s suit he could avoid paying
No. 06-2251                                                                      Page 3

the full filing fee. Heard added that Bond had abandoned this plan and falsely
disclaimed his role in the lawsuit after he learned that both inmates would have to
pay the full fee and that the court suspected Bond’s purported participation in the
case was a fraud. The court, however, decided without explanation that Heard was
the liar and indeed had listed Bond as a co-plaintiff without Bond’s consent. The
court, citing both § 1915A and 28 U.S.C. § 1915(e)(2)(b), then dismissed Heard’s
amended complaint with prejudice. The court reasoned that Heard had committed
fraud on the court by falsely naming Bond as a co-plaintiff, and that his attempt to
relitigate the religion claim after being warned that it was frivolous rendered the
suit malicious.

        Heard’s most substantial argument is that the court had no authority either
to dismiss the complaint as fraudulent or to dismiss the entire complaint simply
because it includes one claim deemed to be “malicious.” Under § 1915A, a district
court must dismiss prisoner litigation against governmental entities or employees
to the extent the suit is frivolous, malicious, fails to state a claim, or seeks monetary
relief from immune parties. The district court in its order of dismissal refers both
to § 1915A and § 1915(e)(2)(B), but Heard’s complaint was not subject to the latter
provision because the court never allowed him to proceed in forma pauperis. See
Hrobowski v. Commonwealth Edison Co., 203 F.3d 445, 448 (7th Cir. 2000);
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam). Our review,
then, is limited to § 1915A, since that is the only plausible basis for dismissal relied
upon by the district court.

       Section 1915A does not list fraud as a ground for dismissal. The district
court may have intended to dismiss the complaint as frivolous or malicious, but
Heard’s species of fraud does not make his complaint either. A frivolous complaint
is one lacking an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319,
325 (1989); see also Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000) (noting
that frivolousness is an objective standard that refers to a claim that “no reasonable
person could suppose to have any merit”). Complaints containing fraudulent
misrepresentations might lack an arguable basis in fact or law, for example, if the
essential allegations underlying the claims for relief are lies. See Simpson v. Nickel,
450 F.3d 303, 307 (7th Cir. 2006). But that is not what the district court found
here. Even if the court had reason to label Heard and not Bond the liar, Heard’s
misrepresentation that Bond wanted to participate in the suit does not make the
factual allegations underlying his claims untrue. Likewise, Heard’s fraud does not
makes his complaint malicious. A malicious complaint is one brought for purposes
of harassment. Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003). If there
is something to Heard’s allegations (and right now, at least with respect to his
medical claims, we have no way of knowing), then the complaint was not filed for an
improper purpose. We might speculate that Heard falsely named Bond as a
plaintiff to provide some corroboration for his allegations, but that does not mean
the entire case is a lie brought solely to harass the defendants.
No. 06-2251                                                                     Page 4

       We also agree with Heard that the district court’s alternative ground for the
dismissal cannot stand. Section 1915A does not require a court to dismiss a
prisoner’s entire complaint simply because one claim is malicious. On the contrary,
the statute specifically says courts “shall . . . dismiss the complaint, or any portion
of the complaint. . . .” 28 U.S.C. § 1915A(b). The usual practice when a complaint
contains both viable and defective claims is to dismiss the bad claims and let the
rest go ahead. See Jones v. Bock, Nos. 05-7058, 05-7142, 2007 WL 135890, at *13
(U.S. Jan. 22, 2007); Robinson v. Page, 170 F.3d 747, 748-49 (7th Cir. 1999).

       The district court may have intended to dismiss the entire complaint as a
sanction either because Heard committed fraud or because he refiled his complaint
containing the RLUIPA claim after the court told him that claim was frivolous.
District courts do have the authority to dismiss a case in its entirety because of the
plaintiff’s misconduct. Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306
(7th Cir. 2002); Oliver v. Gramley, 200 F.3d 465, 466 (7th Cir. 1999). But the
decision to dismiss a case as a sanction is discretionary, while dismissal under
§ 1915A or § 1915(e)(2) is not. See Hrobowski, 203 F.3d at 448-49. Given the
district court’s multiple references to § 1915A and § 1915(e)(2)(B), it is not clear
whether the court actually exercised its discretion to dismiss the case as a sanction
or dismissed because it thought this result was required under the statutes it cited.
So we must remand for the district court to clarify this point. See Hrobowski, 203
F.3d at 448-49.

       We also note that, even though the district court has the authority to dismiss
Heard’s case as a sanction for his fraud, dismissal is a severe sanction that
ordinarily should be used only after considering whether lesser sanctions would
suffice. See Oliver, 200 F.3d at 466; see also Allen v. Chi. Transit Auth., 317 F.3d
696, 703 (7th Cir. 2003) (suggesting dismissal might be too severe a sanction even
for fraud if fraud was “clumsily committed and quickly discovered”). On remand,
the court should consider whether Heard’s fraud was egregious enough to justify
such a severe sanction.
                                                       VACATED and REMANDED.
