United States District Court, D. New Hampshire
Dr. Jeffrey Isaacs
Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth-Hitchcock Medical Center Opinion No. 2017 DNH 136
McCafferty United States District Judge
claims that arise from a disciplinary action taken against
him by the New Hampshire Board of Medicine
(“Board”), Dr. Jeffrey Isaacs has sued the Board,
the Trustees of Dartmouth College (“Trustees”),
and Dartmouth-Hitchcock Medical Center
(“DHMC”). Against DHMC (and the Trustees), plaintiff
brings: (1) substantive and procedural due process claims,
through the vehicle of 42 U.S.C. § 1983 (Count VI); (2)
a claim under 42 U.S.C. § 1985(3) (Count VII); (3) a
retaliation claim under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-12213
(Count VIII); and (4) a claim captioned “Injunctive
Relief” (Count IX). Before the court is DHMC's
motion to dismiss. Plaintiff objects. For the reasons that
follow: (1) DHMC's motion to dismiss is granted as to
Counts VI, VII, and IX; (2) Counts VI, VII, and IX are
dismissed as to the Trustees, sua sponte; (3) plaintiff's
§ 1985(3) claim against the Board, asserted in Count II,
is dismissed sua sponte; and (4) plaintiff is ordered to show
cause why the ADA retaliation claims he asserts in Counts IV
and VIII should not be dismissed, with prejudice, for failure
to exhaust the administrative remedies available to him.
The Legal Standard
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Analyzing plausibility is “a context-specific
task” in which the court relies on its “judicial
experience and common sense.” Id. at 679.
facts recited in this section are drawn from: (1)
plaintiff's First Amended Complaint (“FAC”);
(2) exhibits attached to plaintiff's original complaint;
(3) other “documentation incorporated by reference in
the complaint, ” Sanders v. Phoenix Ins. Co.,
843 F.3d 37, 42 (1st Cir. 2016) (quoting
Rivera-Díaz v. Humana Ins. of P.R.,
Inc., 748 F.3d 387, 388 (1st Cir. 2014)); and (4) the
summary judgment order in an action that plaintiff brought in
2012 against DHMC, the Trustees, and several other
attended the Keck School of Medicine of the University of
Southern California (“Keck” or “USC”)
until, during his first year, “he was suspended and
ultimately dismissed for harassing a classmate.”
Isaacs v. Dartmouth-Hitchcock Med. Ctr., No.
12-CV-040-LM, 2014 WL 1572559, at *2 (D.N.H. Apr. 18,
2014). Dr. Isaacs then sued USC, and his suit resulted in two
settlement agreements, one with USC's deans and one with
he left USC, Isaacs attended the American University of the
Caribbean, Netherlands Antilles, which awarded him an M.D.
degree. Thereafter, he began a residency in general surgery
at the University of Arizona (“UA”), but he
resigned after approximately three weeks.
Dr. Isaacs applied for a residency at DHMC through the
Electronic Residency Application Service
(“ERAS”). “In [his ERAS] application, he
omitted both his attendance at USC and his aborted residency
at UA.” Isaacs, 2014 WL 1572559, at *2. Based
upon his ERAS application, Dr. Isaacs was accepted into the
DHMC residency program in psychiatry.
Isaacs began his DHMC residency in June of 2011. He was
dismissed in March of 2012. DHMS's letter of dismissal
states, in pertinent part:
The decision to dismiss you from your position in the
residency is based on academic deficiency issues as well as
behavior incompatible with the role of a physician including
the omission of material information from your Electronic
Residency Application Service (ERAS) application,
falsification of information provided to the New Hampshire
Board of Medicine, and false reporting in a patient's
electronic medical record as well as other substantiated
competency and integrity concerns.
Specifically, your ERAS application lacked information
regarding your prior residency training in Arizona as well as
time served as a medical student at the University of
Southern California. You also failed to divulge your
dismissal from medical school at USC in information provided
to the New Hampshire Board of Medicine in support of a NH
Compl., Ex. K (doc. no. 3-11), at 1.
he was dismissed from the DHMC residency program in 2012, Dr.
Isaacs had filed suit against four defendants, including DHMC
and the Trustees. After his dismissal, he amended his
complaint to add defendants and causes of action.
amended complaint, he asserted multiple causes of action,
under state and federal statutes, including the ADA, and
under the common law of New Hampshire. The defendants in Dr.
Isaacs' 2012 action all prevailed at summary judgment.
DHMC dismissed Dr. Isaacs, it notified the Board of his
dismissal, and further informed the Board that Dr. Isaacs had
“allegedly omitted material facts from his Application
for Training License for Residents and Graduate Fellows and
the supplement filed along with the application.”
Def.'s Mot. to Dismiss, Ex. 1 (doc. no. 7-1), at
1. “As a result of [that] information, the Board
commenced an investigation to determine whether [Dr. Isaacs]
committed professional misconduct pursuant to RSA 329:17, VI
and RSA 329:18.” Id.
October of 2013, the Board issued a Notice of Hearing,
informing Dr. Isaacs that a hearing had been scheduled for
February 5, 2014. On January 29, 2014, Dr. Isaacs notified
the Board that he had filed suit against it in Pennsylvania,
and asked the Board to postpone his hearing. He also asked to
appear at his hearing telephonically, for medical reasons.
The Board denied both requests. On the morning of the day of
his hearing, which was scheduled for 1:00 p.m., Dr. Isaacs
sent the Board an e-mail indicating that he would not be
attending, due to inclement weather that would make it
impossible for him to drive to New Hampshire from
Pennsylvania. The hearing went on as scheduled, without Dr.
Isaacs. “Attorney Jeff Cahill appeared as hearing
counsel.” Def.'s Mot. to Dismiss, Ex. 1 (doc. no.
7-1), at 4.
month after the hearing, the Board issued a Final Decision
and Order, which was signed by Penny Taylor, in her capacity
as Administrator and Authorized Representative of the New
Hampshire Board of Medicine. Taylor described the evidence
before the Board as including the two e-mails in which Dr.
had requested continuances of the hearing, and she also
characterized the three exhibits produced by hearing counsel:
Exhibit 1 is [Dr. Isaacs'] 2011 NH Application for
Residency Training License; Exhibit 2 is an excerpt of a
March 1, 2007 court order in Isaacs v. USC; and
Exhibit 3 [is] the April 2008 Confidential Settlement in
Isaacs v. USC. These exhibits along with notice of
witnesses to be presented were provided to [Dr. Isaacs] on
January 31, 2014.
Hearing counsel also presented the testimony of Dori
Lefevbre, Board Investigator. Ms. Lefevbre testified that she
was able to obtain the documents that were marked as exhibits
2 and 3 as public records available on-line from the federal
Def.'s Mot. to Dismiss, Ex. 1 (doc. no. 7-1), at
5. According to its order, the Board relied upon no exhibits
other than Dr. Isaacs' two e-mails, his ERAS application,
and the court order and settlement agreement that its
investigator had obtained from the public record of Dr.
Isaacs' case against USC.
decision, the Board noted that DHMC's dismissal of Dr.
Isaacs resulted in the cancellation of his medical license as
a matter of law. But, it also went on to issue a reprimand,
based upon its findings that when Dr. Isaacs applied for his
license, he “knowingly made a false statement and
further failed to disclose a material fact.” Def.'s
Mot. to Dismiss, Ex. 1 (doc. no. 7-1), at 8-9. Since
the Board reprimanded him, Dr. Isaacs has applied to many
residency programs, including the program at DHMC, but he has
not received a single interview.
February 3, 2017, two days before the third anniversary of
his hearing before the Board, Dr. Isaacs filed the complaint
that initiated this action. His case now consists of five
claims against the Board and four claims against DHMC and the
Trustees, which plaintiff lumps together as the