### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 1449

B ASHIR S HEIKH

, Plaintiff

‐ Appellant

,

v.

G RANT R EGIONAL H EALTH 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 S EPTEMBER 16, 2014

— D ECIDED O CTOBER 14, 2014

____________________

Before B AUER

, P OSNER

, and E ASTERBROOK

, 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 other2 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

‐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 the4 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.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 he6 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. ButNo. 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 matter8 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

.