Abcarian v. Mcdonald

• Decision Date: 13 August 2010
• Docket Number: No. 09-3208.,09-3208.
• Citation: 617 F.3d 931
• Parties: Herand ABCARIAN, Plaintiff-Appellant,v.Timothy McDONALD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

617 F.3d 931

Herand ABCARIAN, Plaintiff-Appellant,v.Timothy McDONALD, et al., Defendants-Appellees.

No. 09-3208.

United States Court of Appeals, Seventh Circuit.

Argued April 22, 2010.

Decided Aug. 13, 2010.

Joseph M. O'Callaghan (argued), O'Callaghan & Colleagues, Chicago, IL, for Plaintiff-Appellant.

Richard P. Steinken, William D. Heinz (argued), Jenner & Block LLP, Chicago, IL, for Defendants-Appellees.

Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

After learning that the settlement of a medical malpractice claim against him had been reported to state and national professional authorities, Dr. Herand Abcarian filed this suit against the University of Illinois and a number of its employees alleging numerous violations of his constitutional rights. The district court dismissed the amended complaint in its entirety and entered a judgment dismissing the case. Abcarian then moved the district court to reconsider its ruling and allow him to amend his complaint again, but the district court denied that motion.

We affirm in all respects. Abcarian's own complaint shows that the defendants merely complied with legal requirements for filing notices of medical malpractice settlements with federal and state authorities. By filing those notices, the defendants did not violate Abcarian's free speech rights or his rights to equal protection of the law and due process of law.

Plaintiff's Allegations

Because the district court granted the defendants' Rule 12(b)(6) motion to dismiss, we take the complaint's well-pleaded factual allegations as true and draw all reasonable inferences in Abcarian's favor from those allegations. London v. RBS Citizens, N.A., 600 F.3d 742, 745 (7th Cir.2010). Where those allegations are contradicted by written exhibits that Abcarian attached to his amended complaint, however, the exhibits trump the allegations. See Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 455 (7th Cir.1998). We review de novo the district court's grant of a motion to dismiss for failure to state a claim. United States v. Lewis, 411 F.3d 838, 841-42 (7th Cir.2005), citing Olson v. Wexford Clearing Servs. Corp., 397 F.3d 488, 490 (7th Cir.2005).

At all relevant times, Abcarian was Head of the Department of Surgery at the University of Illinois College of Medicine at Chicago and Service Chief of the Department of Surgery of the University of Illinois Medical Center at Chicago. During his tenure, Abcarian and the individual defendants-who were all University employees-clashed over a number of issues including risk management, faculty recruitment, compensation and fringe benefits, other issues that Abcarian vaguely refers to as managerial obstruction of “numerous needed changes,” and medical malpractice insurance premiums.

In 2005, Abcarian was notified that a lawsuit was being contemplated against him based on the death of John Behzad, a former patient. When the defendants learned of this potential lawsuit, says the complaint, they conspired together to use that suit to discredit Abcarian's reputation. As part of this alleged conspiracy, the University executed a settlement agreement with John Behzad's son David Behzad. The agreement released the University and its employees and agents (implicitly but undoubtedly including Abcarian) from any and all claims arising out of John Behzad's death in exchange for a payment of $950,000. ¹

Abcarian alleges that the execution of this settlement agreement was the first step in a conspiracy to destroy his reputation and career. How could a settlement advance the conspirators' goal of discrediting Abcarian? Abcarian's answer to this question is that the defendants entered into the settlement agreement and paid Behzad nearly a million dollars merely so they could report the settlement of a medical malpractice claim against Abcarian to the Illinois Department of Financial and Professional Regulation (“IDFPR”) and the National Practitioner Data Bank (“NPDB”).² Upon receiving those reports, both the IDFPR and the NPDB asked Abcarian to provide information about the settlement.³ The IDFPR told Abcarian that a failure to provide a timely response to its request could result in disciplinary action. Abcarian does not allege, however, that any formal disciplinary proceedings were ever initiated against him, let alone that any formal disciplinary sanctions were imposed.

The alleged conspiracy to destroy Abcarian's professional reputation did not end with the reporting of the settlement, according to Abcarian. The same day that the settlement agreement was executed, the defendants directed David Behzad's counsel to file suit against Abcarian in a state trial court. They further directed Behzad's counsel not to serve Abcarian with process in that suit, but to inform the court that the matter had been settled and to request a dismissal of the lawsuit. Abcarian believes that the defendants did this to prevent him from contesting the merits of the malpractice claim.

The state trial court approved the settlement agreement and dismissed the case with prejudice. When Abcarian learned of the dismissal, he filed a petition to vacate the dismissal. He asked that the settlement be vacated and the settlement funds returned to the defendants. The defendants, through counsel, intervened to oppose this petition. The court vacated the dismissal order but declined to vacate the settlement agreement. Behzad then voluntarily dismissed his lawsuit with prejudice. The trial court's decision was affirmed on appeal Behzad v. Abcarian, No. 1-07-1357 (Ill.App. May 19, 2008) (unpublished order), and the Illinois Supreme Court declined review Behzad v. Abcarian, 229 Ill.2d 618, 325 Ill.Dec. 1, 897 N.E.2d 249 (2008).⁴

Abcarian then brought this lawsuit against the defendants alleging various constitutional claims under 42 U.S.C. § 1983, as well as a number of state law claims. On the defendants' motion to dismiss Abcarian's amended complaint, the district court dismissed all claims against the Board of Trustees of the University of Illinois on Eleventh Amendment grounds and dismissed all of Abcarian's constitutional claims against the individual defendants for failure to state a claim on which relief could be granted. Abcarian v. McDonald, No. 08 C 3843, 2009 WL 596575 (N.D.Ill. March 9, 2009). The district court then declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed them without prejudice. Id. at *9. Abcarian later asked the court to amend its judgment and to allow him to amend his complaint again, but the court denied both requests. Abcarian v. McDonald, No. 08 C 3843, 2009 WL 2448044 (N.D.Ill. Aug. 10, 2009).

Abcarian appeals the district court's dismissal of his free speech, equal protection, and procedural due process claims against the individual defendants. He also challenges the court's refusal to amend its judgment under Federal Rule of Civil Procedure 59(e) and argues that the court should have permitted him to amend his complaint. He does not appeal the dismissal of his claims against the Board of Trustees or the dismissal of his substantive due process and jury trial claims.

Analysis

I. Dismissal on the Merits

A. First Amendment Retaliation Claim

In Count I of his amended complaint, Abcarian claimed that the defendants violated his First Amendment rights by retaliating against him for exercising his freedom of speech. The district court concluded that the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), foreclosed this claim because all of the speech that prompted the alleged retaliation was speech in the course of Abcarian's official duties as a public employee.

On appeal, Abcarian's makes two arguments to avoid the effect of Garcetti. First, he argues that Garcetti forbids retaliation claims only against employers themselves, not against fellow employees. This is an issue on which we reserved judgment in Fairley v. Andrews, 578 F.3d 518, 524 (7th Cir.2009). Second, he argues that even if Garcetti reaches retaliation claims against other employees, it does not foreclose his claim because his speech did not “owe[ ] its existence” to his professional responsibilities. See 547 U.S. at 421, 126 S.Ct. 1951.

Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. The case arose when a state prosecutor brought a First Amendment retaliation claim arising out of discipline imposed on him after he drafted a memorandum questioning the validity of a search warrant obtained in a pending criminal case. Id. at 413-15, 126 S.Ct. 1951. The Supreme Court rejected his claim. Although the Court noted employers' heightened interest in controlling employee speech when necessary to manage workplace operations, it focused on the fact that restricting speech made pursuant to employment duties “does not infringe any liberties the employee might have enjoyed as a private citizen.” Id. at 421-23, 126 S.Ct. 1951. As a result, the Court rejected “the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.” Id. at 426, 126 S.Ct. 1951.

Plaintiff Abcarian seeks to narrow Garcetti to apply only to claims against the employer as an entity, while still allowing claims against individual co-employees who acted as agents of the employer. We are not persuaded. It would be difficult to reconcile Garcetti with a broad rule permitting retaliation claims against co-employees in all circumstances. Although the Supreme Court couched its analysis in the context of the employer-employee relationship, it indicated that employees speaking pursuant to their official duties do not speak as citizens for purposes of the First...