Ladien v. Astrachan

Decision Date22 October 1997
Docket NumberNo. 96-2672,96-2672
Citation128 F.3d 1051
PartiesKimball H. LADIEN, M.D., Plaintiff-Appellant, v. Boris ASTRACHAN, Gloria Jackson Bacon, and James Barter, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Paul R. Shuldiner, Karen F. Botterud (argued), Chicago, IL, for Kimball H. Ladien.

Carla J. Rozycki (argued), D. Scott Watson, Keck, Mahin & Cate, Chicago, IL, for Boris Astrachan, Gloria Jackson Bacon and James Barter.

Karen J. Dimond, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Kenneth Boyle and Lee Combrinck-Graham.

Before EASTERBROOK, KANNE and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

For one year, Dr. Kimball Ladien was employed as a child psychiatrist at the Institute for Juvenile Research. 1 While there, Dr. Ladien voiced protest against what he believed to be gross medical misconduct by his employer and by the Illinois State Psychiatric Institute.

Because the Institute for Juvenile Research did not renew his contract for a second year, Dr. Ladien filed suit on June 22, 1992, alleging that the Institute retaliated Dr. Ladien claims that the defendants 2 violated his free speech and due process rights under the Constitution in violation of 42 U.S.C. §§ 1983 and 1985, in that he was subjected to intentional infliction of emotional distress in violation of Illinois law.

against him for expressing his views. Six months later, he voluntarily dismissed his complaint. Ten months later, on October 27, 1993, he filed this lawsuit which is the subject of this appeal.

The defendants moved to dismiss the complaint asserting immunity and the statute of limitations. On July 26, 1994, the district court granted in part and denied in part the defendants' motions. The court found timely the claims against the defendants in their individual capacity and found now time barred the claims against the defendants in their official capacity. The district court further found that the Eleventh Amendment cloaked the institutional defendants with governmental immunity and therefore it dismissed all claims against the institutional defendants.

Consequently, the remaining defendants in this action are nineteen persons sued in their individual capacity: eighteen are members of the Board of Trustees of the University of Illinois at Chicago, and Governor Jim Edgar, an ex officio member of the Board of Trustees.

Throughout the pleading and discovery stages of this case, defendants have filed various motions to compel Dr. Ladien to conform to judicial orders and discovery requests. The district court reviewed each of defendants' motions and ultimately sanctioned Dr. Ladien for his repeated misconduct by dismissing his case with prejudice. We now review in some detail the type of conduct that led to the dismissal of Dr. Ladien's case.

HISTORY
The September 21, 1994 Status Hearing

At this hearing, the court admonished Dr. Ladien for ex parte correspondence with the court and ordered him to cease such attempts:

The Court: Mr. Ladien, I just want to say you sent several things to me in the mail and you shouldn't do that.

Dr. Ladien: I found out afterwards that I shouldn't. I apologize.

The Court: It's no big deal, but it could be construed as ... trying to influence the Court one way or another.

Rec. Tr. Vol. 1 at 2. The court further ordered Dr. Ladien not to directly contact the individual defendants, and directed him to deal only with defendants' counsel:

The Court: Here is the way it is, Doctor: You sued them. You know, you have in a civilized fashion attacked them. They are entitled to defend themselves.... [M]y job is to follow the rules. The rules say that when you attack a person, which you have done--you have attacked a number of people here--then you have to deal with their lawyer. If they were pro se, great, you could deal with them, but they are not. They hired a lawyer. You got to deal with their lawyer. And that is it. And it is a violation--you will get yourself sanctioned if you deal directly with the clients.

Rec. Tr. Vol. 1 at 14-15.

Although the court gave clear instructions against direct contact with defendants, on October 14, 1994, Dr. Ladien sent a letter to Michelle Thompson. Thompson is the Special Assistant to the President of the University of Illinois, Stanley Ikenberry. Ikenberry is a named defendant in this matter. The stated purpose of Dr. Ladien's letter was to set a meeting with the defendants so that the parties could discuss this case. Dr. Ladien also mailed a copy of this letter directly to the court. Rec. Pl. Vol. 2, Doc. No. 50 Exh. 4.

The January 19, 1995, Hearing on Motion for Sanctions

On October 24, 1994, in response to Dr. Ladien's October 14 letter to Thompson and

the court, the defendants filed a motion for sanctions outlining Dr. Ladien's disregard of the order that he not communicate directly with the defendants or the court. At the hearing on the motion for sanctions, the court noted that Dr. Ladien's October 14 letter to Thompson violated its order; nevertheless, the court refused to impose sanctions against Dr. Ladien. The court reasoned that Dr. Ladien's letter was not burdensome to defendants and therefore no real harm had been done.

The March 16, 1995 Hearing on Motion to Compel or to Dismiss for Failure to Comply with Discovery

The defendants filed a motion to compel or, alternatively to dismiss for failure to comply with discovery. At the hearing on this motion, the court was informed that on November 16, 1994, defendants served Dr. Ladien with their First Set of Interrogatories and their First Request for the Production of Documents. According to defendants, Dr. Ladien's response to these discovery requests was "wholly inadequate." After discussing with his counsel Dr. Ladien agreed to supplement the discovery responses by March 8. However, Dr. Ladien failed to provide the supplemental responses as promised. The court acknowledged Dr. Ladien's failure to follow proper discovery procedure, but, instead of imposing sanctions, the court persuaded defendants to withdraw their motion to compel and/or dismiss and allow Dr. Ladien a 21-day extension to respond to defendants' discovery requests.

The April 25, 1995 Status Hearing

At the April 25, 1995 status hearing, 3 defendants once again complained that Dr. Ladien had not properly complied with their discovery requests. In response, Dr. Ladien asserted that the defendants made inadequate discovery responses. The court indicated that the case had been pending a long time but that it would nevertheless extend the discovery cutoff date to September 29. Furthermore, the court cautioned:

And if somebody doesn't do what they are supposed to do, you can come in on motion and I am going to be real heavy-handed in making sure that people comply. If the defendants don't comply, they could end up getting judgments entered against them. If you [Dr. Ladien] don't comply, you could end up having your case tossed out. That is just a metaphor, but it means you lose--would lose.... They [defendants] are subject to the same rules that you [Dr. Ladien] are subject to.

Rec. Tr. Vol. 5 at 5.

Two days after the status hearing, on April 27, defendants filed a motion for protective order and/or for sanctions. This motion was filed by defendants, in part, to protect the identity of a former patient who had been revealed in one of Dr. Ladien's discovery requests, which was in violation of the Mental Health and Developmental Disabilities Confidentiality Act, 740 Ill. Comp. Stat. §§ 110/1 et seq. In response to defendants' motion, the court entered an Agreed Protective Order prohibiting any further reference to specific patients during the discovery process.

The July 12, 1995 Hearing on Motion to Dismiss as a Sanction for Repeated Discovery Abuse and Failure to Comply with the Court's Orders

This motion to dismiss was based on alleged repeated discovery abuses by Dr. Ladien. On April 25, 1995, over 5 months after defendants had served their discovery requests upon Dr. Ladien, he provided defendants with a signed verification that the responses to his interrogatories and his production of documents were "complete." Notwithstanding Dr. Ladien's verification, on May 23, at the deposition of a non-party, Dr. Ladien's counsel used as exhibits, over the defendants' objections, documents which Dr. Ladien had not disclosed to defendants. Moreover, one of the documents used at this The court declined to impose a sanction of dismissal at that time. The court did, however, continue the matter until the next status hearing, which the court set for September 6. The court then issued a warning:

deposition identified a specific mental health patient--which violated the court's Agreed Protective Order not to disclose the names of patients. Shortly after this deposition, Dr. Ladien's counsel agreed to review the accuracy of Dr. Ladien's discovery production. Then, on June 2, Dr. Ladien delivered to defendants two large shopping bags of documents which previously had not been disclosed. Upon examination of these new documents, defendants learned that Dr. Ladien had personally made several Freedom of Information Act ("FOIA") requests in late April or early May of 1995--which would, if mailed after April 27, have contravened the April 27 court order that all FOIA requests be made only by Dr. Ladien's counsel and not by Dr. Ladien himself. 4

Dr. Ladien, at some point--there is a lot of judges who would take the easy way out and the easy way out is to let you trip up procedurally, throw the case out and then you never get to the merits of it. And it is a--it is a temptation. I actually admit it in this particular case. So you really got to do what your lawyer says.

Rec. Tr. Vol. 6 at 8-9. The hearing on the defendant's motion to dismiss as a sanction resumed on September 6, 1995 and was continued until October 18, 1995.

The October...

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