Bashir Sheikh v. Grant Regional Health Center

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1449
BASHIR S HEIKH,
Plaintiff‐Appellant,
v.
G RANT R EGIONAL HEALTH C ENTER ,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 11 C 1 — William M. Conley, Chief Judge.
____________________
A RGUED SEPTEMBER 16, 2014 — D ECIDED OCTOBER 14, 2014
____________________
Before BAUER , P OSNER , and EASTERBROOK , Circuit Judges.
P OSNER , Circuit Judge. In 2009 the plaintiff, a physician,
was hired by the defendant, a small “critical access” hospital
in rural Wisconsin, as the director of its emergency room. (A
critical access hospital is a hospital “having no more than 25
inpatient beds; maintaining an annual average length of stay
of no more than 96 hours for acute inpatient care; offering
24‐hour, 7‐day‐a‐week emergency care; and being located in
a rural area, at least a 35‐mile drive away from any other

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2 No. 14‐1449
hospital.” U.S. Dept. of Health & Human Services, “What
Are Critical Access Hospitals (CAH)?,” www.hrsa.gov/healt
hit/toolbox/RuralHealthITtoolbox/Introduction/critical.html,
visited Sept. 29, 2014.) Fired just months after being hired, he
sued the hospital in January 2011 under Title VII, claiming
that the hospital had discriminated against him because of
his Indian ethnicity. (The complaint added supplemental
state law claims to his Title VII claim.) For example, he con‐
tended that a hospital employee said to him “you must be
that Middle Eastern guy whom they hired as ER director”
and accused him of taking her job, spat at him, and told him
he belonged to a terrorist class of people and was a danger
to the hospital. A number of hospital personnel complained
to the plaintiff’s superior that he was incompetent—that he
had poor patient skills, behaved unprofessionally, misdiag‐
nosed patient ailments, and couldn’t get along with the hos‐
pital’s staff. His superior urged him to resign. That was less
than a month after he had begun working at the hospital, a
period during which he worked only twelve shifts. He re‐
fused to resign, but not long afterward was fired by the hos‐
pital’s CEO.
He sued pro se, but later obtained a lawyer, who subse‐
quently withdrew, and so the plaintiff was again represent‐
ing himself. In May 2012 the hospital filed what the plain‐
tiff’s opening brief in this court acknowledges was a “heavi‐
ly supported” motion for summary judgment. The district
judge gave the plaintiff until July 16 to respond, stating that
“no further extensions will be granted to plaintiff for any
reason. Plaintiff should plan accordingly” (emphasis in
original). Shortly before the deadline, the plaintiff obtained a
new lawyer, who on July 16 filed a brief opposing the hospi‐
tal’s summary judgment motion, with some supporting ma‐

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No. 14‐1449 3
terials. The brief proposed findings of fact, but did not re‐
spond directly to the hospital’s proposed findings of fact in
support of the motion for summary judgment.
The plaintiff—not his lawyer—submitted two affidavits
(both dated July 16, the deadline for filing, but the second
affidavit wasn’t filed until the next day) purporting to re‐
spond to the hospital’s motion. The judge struck the second
affidavit as untimely, which it was, having been filed after
the July 16 deadline. The plaintiff neither sought permission
to make untimely filings nor gave any reason for not having
filed the affidavit on time.
The first affidavit is very strange, because all it does is at‐
tach the hospital’s Human Resources Policies and Procedures
Manual, its Medical Staff Bylaws, and the letter terminating
the plaintiff. All these materials were already part of the rec‐
ord. They are voluminous (except for the letter of termina‐
tion), yet the affidavit contains no commentary on them.
The second affidavit is more promising; it consists of 166
paragraphs of facts and arguments. Yet it isn’t actually an
affidavit—it isn’t notarized or otherwise witnessed—though
it might pass muster as a declaration, which can be substi‐
tuted for an affidavit and thus constitute part of the eviden‐
tiary record, provided it complies with the formalities re‐
quired by 28 U.S.C. § 1746.
The defendant quickly responded to the plaintiff’s filings,
pointing out not only that the second affidavit was untimely
(the first affidavit was irrelevant, as it merely attached,
without commentary, materials already in the record), but
also that it confronted the defendant with two sets of pro‐
posed findings of fact to evaluate: the set submitted by the

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4 No. 14‐1449
plaintiff’s (second) lawyer on July 16, and the 166 para‐
graphs submitted by the plaintiff himself the next day. There
were many discrepancies between the two sets of proposed
findings, and those discrepancies would have made it diffi‐
cult for the defendant to respond within the deadline fixed
by the judge (who was becoming impatient). A further oddi‐
ty is that the second affidavit is just a set of proposed find‐
ings, even though the plaintiff’s excuse for filing it was that
his lawyer, though he had filed a set of proposed findings on
the plaintiff’s behalf, had failed to reply to the defendant’s
proposed findings.
Two weeks after the judge struck the plaintiff’s two affi‐
davits, the plaintiff’s lawyer (his second lawyer, remember)
filed a motion to withdraw from representing the plaintiff.
Simultaneously the plaintiff filed a motion to discharge the
lawyer for having failed (which indeed he had) to respond
adequately to the hospital’s motion for summary judgment.
The plaintiff also requested permission to respond himself to
the defendant’s proposed findings of fact that had underlain
the defendant’s motion for summary judgment and that the
plaintiff’s lawyer had failed to respond to.
The judge granted the plaintiff’s motion to discharge the
lawyer, and so the plaintiff was once again proceeding pro
se. But the judge declined to give him any additional time
within which to respond to the defendant’s proposed find‐
ings of fact, on the ground that whether to grant summary
judgment had been fully briefed. Eventually the judge
granted the motion for summary judgment, dismissing the
plaintiff’s federal claims with prejudice and his state law
claims without.

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No. 14‐1449 5
The plaintiff requested reconsideration, arguing that the
judge had never ruled on whether to accept additional sup‐
plementary responses to the hospital’s motion for summary
judgment. The judge denied the request for reconsideration,
repeated the denial after the plaintiff renewed the request in
November, and three months later issued a final judgment
terminating the litigation. The grant of summary judgment
also operated as a denial of the plaintiff’s motion to be al‐
lowed to file responses to the defendant’s proposed findings
of fact. But the judge did remark that he had considered the
proposed findings submitted by the plaintiff’s second law‐
yer—had deemed them responsive to the defendant’s pro‐
posed findings, even though (though the judge didn’t say
this) they weren’t really. But the judge’s consideration of the
lawyer’s proposed findings had not saved the day for the
plaintiff.
The plaintiff does not ask us to order the judge to rein‐
state the second affidavit (the 166 paragraphs). He refers at
times to the affidavit but only to illustrate the kind of find‐
ings he would have submitted had the judge allowed him to.
His critical argument is that the judge erred in not allowing
him to submit a belated response to the defendant’s pro‐
posed findings of fact. Not so, quite apart from the fact not‐
ed earlier that this would have required the defendant to
supplement its original response to the plaintiff’s proposed
findings of fact. Represented by counsel, as he still was when
he filed the affidavits, the plaintiff wasn’t authorized to file
his own responses to the hospital’s motion. He both had a
lawyer and was acting as his own lawyer. That was a confus‐
ing mode of representation and one not permitted, though
he did ask for permission to file a response to the defend‐
ant’s proposed findings of fact at the same time that he

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6 No. 14‐1449
asked the court to dismiss his attorney—so had the judge
granted both requests simultaneously, the plaintiff would
properly have submitted the response pro se.
About all that can be said in the plaintiff’s favor—and it
is too little to affect the judgment—is that the judge should
not have said that “no further extensions will be granted to
plaintiff for any reason” (emphasis in original). Had the
submission of a complete response to the hospital’s motion
been prevented by something that no one could have fore‐
seen or avoided, a refusal to grant an extension of time
would have been unjustified. But the judge’s impatience was
understandable. (And nothing ever did happen to prevent
the plaintiff from making a timely submission.) There are
147 entries in the district court docket of this case, stretching
over three years, yet without an evidentiary hearing of any
sort ever having been held, let alone a trial. Much of the de‐
lay was the result of the plaintiff’s unhappy relationship
with the two lawyers whom he hired after initially suing pro
se. In effect he had six lawyers: himself, proceeding pro se,
on three separate occasions, and in between, and afterward
(on appeal), three real lawyers.
The coup de grâce is that the plaintiff has never offered an
excuse for what he contends was his second lawyer’s in‐
complete response to the hospital’s motion for summary
judgment. Incomplete it was; indeed it violated the district
court’s standing order on summary‐judgment procedure be‐
cause it didn’t respond directly to the defendant’s proposed
findings of fact. (The judge thus gave the plaintiff a small
break by deeming the lawyer’s proposed findings “respon‐
sive” to the defendant’s proposed findings.) The plaintiff ar‐
gues that it was not his fault that his lawyer screwed up. But

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No. 14‐1449 7
in civil litigation the lawyer’s errors are attributed to the cli‐
ent; the client’s only remedy is an action for malpractice.
Were the principal not responsible for his agent’s efforts, lit‐
igation would be even more chaotic than it is.
Against a rule of attribution the plaintiff cites Hill v. Unit‐
ed States, 762 F.3d 589, 591 (7th Cir. 2014), where after noting
that “ordinarily … the pratfalls of a party’s lawyer are im‐
puted to the party,” we said that “given the unusual gravity
of the plaintiff’s injuries, the absence of any suggestion of
prejudice to the defendant from the delay in suing, and the
district judge’s cursory treatment of the issue of equitable
tolling, we have decided that the judgment should be vacat‐
ed and the case remanded to the district court for further
consideration of the tolling issue.” It was an unusual case.
The plaintiff, suing under the Federal Tort Claims Act in re‐
spect of prison violence that had cost him one eye and great‐
ly impaired the vision in his other eye and that he attributed
to the negligence of the Bureau of Prisons, had recently been
evicted from the halfway house to which he had been con‐
signed upon his release from prison and had failed to notify
the court of his new address. The district court denied the
plaintiff’s plea of equitable tolling not because of his law‐
yer’s delay in filing suit but because of the plaintiff’s failure
to keep the court advised of his changes of address. So while
the plaintiff’s lawyer had bobbled his case, the ground of
dismissal was the plaintiff’s bobble, which we thought, giv‐
en his physical condition, was a weak ground for dismissal.
We did not rule that his case should not have been dis‐
missed, but we remanded for a fuller consideration of the
unusual issue that it presented. There is nothing comparable
in this case. As we said, the judge should not have told the
plaintiff there would be no extensions of time, no matter

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8 No. 14‐1449
what, for responding to the hospital’s motion for summary
judgment. But because no excuse for missing the deadline
was ever offered, the “no extensions no matter what” threat
was never carried out.
A FFIRMED.

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