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Isaacs v. Trustees of Dartmouth College

United States District Court, D. New Hampshire

February 5, 2018

Dr. Jeffrey Isaacs
v.
Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth-Hitchcock Medical Center

          ORDER

          Landya McCafferty United States District Judge.

         Dr. Jeffrey Isaacs was a resident in psychiatry at Dartmouth-Hitchcock Medical Center (“DHMC”) from June of 2011 until March of 2012, when DHMC dismissed him from its residency program. Dr. Isaacs challenged his dismissal in a previous action in this court, which resulted in summary judgment in favor of all defendants. See Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-CV-040-LM, 2014 WL 1572559 (D.N.H. Apr. 18, 2014).

         In March of 2014, after conducting a hearing, the New Hampshire Board of Medicine (“Board”) reprimanded Dr. Isaacs for omissions and misrepresentations in the application for a training license he had submitted to it. According to plaintiff's First Amended Complaint (“FAC”), which is the operative complaint in this case, his claims “arise out of the [Board's] February 5, 2014 Hearing, and their March 2014 Final Decision and Order.” Doc. no. 40 at ¶ 6.

         In his FAC, plaintiff asserted nine claims. In previous orders, the court: (1) dismissed with prejudice all of the claims plaintiff asserted in Counts II, III, IV, V, VI, VII, and IX of the FAC, and all but one of the claims he asserted in Count VIII; (2) allowed plaintiff to move for leave to amend his FAC to reassert the one potentially viable claim in Count VIII, a claim for retaliation under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101-12213, asserted against DHMC and the Trustees of Dartmouth College (“Trustees”), arising from the disposition of his 2016 application for a residency; and (3) directed plaintiff to show cause why the constitutional claims he asserted against the Board and Attorney Jeff Cahill in Count I, by means of 42 U.S.C. § 1983, should not be dismissed as time barred.

         Currently before the court are: (1) plaintiff's response to the show cause order, to which the Board has replied; and (2) plaintiff's motion for leave to amend his FAC, to which the Trustees, the Board, and DHMC all object.[1] In the seven count proposed Second Amended Complaint (“SAC”) that plaintiff has attached to his motion for leave to amend, he asserts what he purports to be a timely § 1983 claim against the Board and Attorney Jeff Cahill (Count I) and an ADA retaliation claim against the Dartmouth defendants (i.e., the Trustees and DHMC) based upon the decision not to give him an interview when he applied for a residency in 2017 (Count V).[2] He also asserts five new claims: (1) a claim under Title IX of the Education Amendments of 1972, against the Dartmouth defendants (Count II of the proposed SAC); (2) a state law claim for fraud against the Board (Count III of the SAC); (3) a state law claim for civil conspiracy against the Dartmouth defendants and the Board (Count IV of the SAC); (4) a claim for retaliation, in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq., against the Dartmouth defendants (Count VI of the SAC); and (5) claims for disability discrimination under both the Rehabilitation Act and the ADA, against the Dartmouth defendants (Count VII of the SAC).

         I. Section 1983 Claims (Count I)

         A. Background

         Unless otherwise indicated, the facts recited below are drawn from plaintiff's FAC or previous orders in this case.

         Shortly after DHMC dismissed Dr. Isaacs from its residency program, it notified the Board that it had done so, and it also informed the Board that it believed that Dr. Isaacs had omitted material facts from the license application he had submitted to the Board. Those omissions concerned plaintiff's attendance at the University of Southern California (“USC”) medical school. In October of 2013, the Board notified Dr. Isaacs that it would hold a hearing on February 5, 2014, to determine whether he had committed professional misconduct by omitting information from, and making misrepresentations in, his application for a training license. On January 29, 2014, Dr. Isaacs asked the Board to stay his hearing, pending the outcome of a suit he had filed against it in the Eastern District of Pennsylvania, where he was then residing. He also asked to appear at his hearing remotely, because he was unable to drive to New Hampshire due to an unidentified medical condition.

         The Board denied both of Dr. Isaacs's requests. In denying his request for a stay, the Board reasoned that Dr. Isaacs's pending action in the Eastern District of Pennsylvania had no bearing on the matter before it and further noted that under New Hampshire law, it was immune from suit. See doc. no. 7-1 at 5 (citing N.H. Rev. Stat. Ann. (“RSA”) § 329:17, IX). On the morning of the day of his hearing, Dr. Isaacs notified the Board that he would be unable to attend because of inclement weather that precluded him from driving from Pennsylvania to New Hampshire that day. The hearing went on without him. Attorney Jeff Cahill served as the Board's hearing counsel.

         After Dr. Isaacs's hearing, the Board issued a Final Decision and Order (“Order”) which was signed by the Board's Administrator, Penny Taylor, and dated March 11, 2014. In its Order, the Board pointed out that Dr. Isaacs's training license had been cancelled by operation of law when he was dismissed from the DHMC residency program. But, the Board went on to reprimand Dr. Isaacs for omissions and misrepresentations in his application for that license.

         With regard to how he learned of the Board's Order, plaintiff alleges: “The Board . . . failed to serve the final Order and Plaintiff did not receive the order by mail or email. Plaintiff found out about the Board's decision online, well after the date was up to appeal.” Doc. no. 40 at ¶ 42. However, plaintiff does not allege either the date on which the Board posted its Order online or the date on which he first saw it. For its part, the Board has produced: (1) a declaration from Taylor stating that she mailed Dr. Isaacs a copy of the Board's Order on March 11, 2014, see doc. no. 66-1 at ¶ 2; and (2) a copy of a transmittal letter addressed to Dr. Isaacs, which was dated March 11, 2014, and which purported to enclose the Order. In any event, plaintiff now “acknowledges” the Board's production of an e-mail that he sent to Attorney Cahill and Taylor on March 26, 2014, which referred to the Board's decision, thus demonstrating that he knew of the decision no later than that date. See doc. no. 62 at ¶ 1; doc. no. 52 at ¶ 6; doc. no. 52-1.[3] Moreover, plaintiff has produced a copy of an e-mail he sent to Lynn Salvo on March 16, 2014, in which he stated that he had read the Board's decision, online, on March 15. See doc. no. 68-3.[4]

         In October of 2014, plaintiff filed a motion with the Board that stated, in full: “Hereby Dr Jeffrey Isaacs motions to NH Board to cease the publication of disciplinary action, pending appeal of NH RSA 329:18-a noncompliance by the Board.” Doc. no. 49 at ¶ 7. RSA 329:18-a outlines the procedures the Board must follow when conducting disciplinary hearings, and it appears that in his October 2014 motion, Dr. Isaacs was suggesting that the Board had violated RSA 329:18-a, IV, which provides that the Board's “decisions shall not be [made] public until they are served upon the parties.” The Board's violation, according to plaintiff, was publishing its Order online before serving him with a copy of it. The Board denied Dr. Isaacs's motion in November of 2014, and he appealed that decision to the U.S. Supreme Court, which denied certiorari on May 21, 2015.

         Dr. Isaacs filed his original complaint in this case on February 3, 2017. In July 2017, he filed his FAC, in which he first asserted claims, by means of § 1983, that Cahill, Taylor, and the individual members of the Board had violated his rights to procedural and substantive due process by:

a. Employing confidential out of state and inaccurate settlement documents to [d]eprive [him] of his livelihood and publicly embarrass him;
b. Failing to consider the relevant documents provided by [him] in his defense;
c. Failing to honor the solemnity of a confidential Court Settlement Agreement;
d. Failing to honor [his] reasonable request to continue the hearing for medical reasons; e. Failing to honor [his] reasonable request to continue the hearing for inclement weather; [and]
f. Fail[ing] to allow [his] reasonable request to participate electronically.

FAC ¶ 52. The injury plaintiff claims is not the loss of his training license, which had been cancelled by operation of law before his hearing. Instead, the injury he claims is damage to his reputation, and to his ability to practice medicine, resulting from the publication of the Board's Order. See doc. No. 40 at ¶¶ 42, 45, 46, 49, 66.

         Finally, while the § 1983 claims that plaintiff asserts in his SAC are identical to those in his FAC, he adds these new factual allegations to his SAC: “Dr. Isaacs moved to reconsider [the Board's March 11] order, a motion that was denied in April of 2014.” Doc. no. 51-1 at¶ 64.

         B. Discussion

         In this section, the court discusses both the § 1983 claims in Count I of the FAC, as well as the proposed amendment to those claims in Count I of the SAC. For the reasons explained below, Count I of the FAC is dismissed as time barred. With respect to Count I of the SAC, and for the reasons explained below, the court orders further briefing.

         The court begins its discussion with Count 1 of the FAC, and then turns to the same count in the SAC.

         1. Show Cause Briefing (Count I of FAC)

         Plaintiff first asserted his § 1983 claims against Cahill, Taylor, and the individual members of the Board in his FAC, which he filed on May 1, 2017. In its show cause order, the court explained that on the record and arguments before it, plaintiff was not entitled to the benefit of the relation back doctrine, which, had it applied, would have established February 3, 2017, as the filing date for his § 1983 claims. Plaintiff does not argue the point in his show cause memorandum. Thus, the question before the court is whether May 1, 2017, falls within or outside the limitations period prescribed by New Hampshire law for personal injury actions. See Martínez-Rivera v. Puerto Rico, 812 F.3d 69, 74 (1st Cir. 2016) (explaining that “[b]ecause section 1983 does not have its own statute of limitations . . . courts use the personal-injury limitations period adopted by the state where the injury supposedly occurred”) (citations removed).

         In New Hampshire, the statute that establishes the limitations period for personal-injury actions provides that:

[A]ll personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

         RSA 508:4, I. While federal courts adjudicating § 1983 claims “use the personal-injury limitations period adopted by the state where the injury supposedly occurred, ” Martínez-Rivera, 812 F.3d at 74, they “use federal law . . . to figure out when the limitation clock starts ticking, ” Id. The federal “rule is that the ticking starts when [the plaintiff] knew or had reason to know of the injury on which [his] claim rests.” Id.; see also Asociación de Suscripción Conjunta del Segura de Responsabilidad Obligatorio v. Jaurbe-Jiminez, 659 F.3d 42, 50 (1st Cir. 2011) (“Section 1983 claims accrue when the plaintiff knows, or has reason to know of the injury on which the action is based . . . .” (internal quotation marks removed)). And, “just as [the court] borrow[s] the state's limitations period in section- 1983 cases, so too [does it] borrow the state's tolling rulings- unless of course they are hostile to federal interests.” Martínez-Rivera, 812 F.3d at 77-75 (citing Rodríguez v. Mun. of San Juan, 659 F.3d 168, 173 (1st Cir. 2011); López-González v. Mun. of Comerío, 404 F.3d 548, 552 (1st Cir. 2005)).

         Finally, as a general matter, “the statute of limitations is an affirmative defense with the defendant bearing the burden of establishing that a claim against it is time-barred.” Rivera-Carrasquillo v. Centro Ecuestre Madrigal, Inc., 812 F.3d 213, 216 (1st Cir. 2016) (citing Asociación de Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d 42, 50 n.10 (1st Cir. 2011)). The defendant's “burden . . . is met by a showing that the action was not brought within 3 years of the act or omission complained of.” Beane v. Dana S. Beane & Co., 160 N.H. 708, 712 (2010) (internal quotation marks removed). With the foregoing principles in mind, the court turns to plaintiff's show cause memorandum.

         In his memorandum, plaintiff posits two possible starting dates for the running of the limitations period on his § 1983 claims: (1) the date in November of 2014 on which the Board denied his motion to cease the publication of its March 11 Order; and (2) May 21, 2015, the date on which the U.S. Supreme Court denied certiorari on his appeal from the Board's November 2014 decision. In his reply to the Board's response to his show cause memorandum, plaintiff appears to change course, focusing not on when the limitations period began to run but rather, suggesting that the running of the limitations period was tolled until the date on which the Board denied his motion in November of 2014. In the discussion that follows, the court begins by establishing when the limitations period began to run and then turns to the question of tolling.

         According to the Board, plaintiff's § 1983 claims accrued on March 11, 2014, the date on which Penny Taylor signed the Board's Order. But according to plaintiff, his injury resulted not from the Board's decision itself, but from the publication of the Board's Order online. The Board has not indicated when the Order was published, much less that Dr. Isaacs knew of its publication on the day it was signed. Thus the limitations period did not begin to run on March 11. However, plaintiff has produced evidence that he knew of the publication of the Board's Order by March 15, 2014.[5] Therefore, any cause of action that plaintiff might have against the Board arising from the manner in which it conducted his hearing and drafted its Order accrued on that date.

         Plaintiff did not file his § 1983 claims against Cahill, Taylor, and the individual members of the Board until May 1, 2017. That is more than three years after any such claims would have accrued. Accordingly, the Board has carried its burden of proving that, to the extent that plaintiff had any cognizable § 1983 claims in the first instance, those claims were time barred by the time he filed them on May 1, 2017.

         Because the Board has carried its burden of proving that plaintiff's § 1983 claims are time barred, those claims can survive only if plaintiff can establish that the limitations period was tolled for an amount of time long enough to have kept it running past May 1, 2017. The availability of tolling is a question of New Hampshire law. See Martínez-Rivera, 812 F.3d at 74-75.

         In his show cause memorandum, without identifying any legal authority, plaintiff argues that the running of the limitations period was tolled by the motion he filed with the Board in October of 2014. In his reply, after identifying Dobe v. Commissioner, New Hampshire Department of Health & Human Services, 147 N.H. 458 (2002), as the legal authority entitling him to the benefit of tolling, plaintiff argues:

By filing a request for administrative appeal, that was subsequently denied, the damages he incurred began at the date of the denial and therefore equitable tolling is appropriate here. Moreover, the Board's denial of the motion, to some degree, concedes they didn't comply with RSA, and had no intent of correcting the matter. In such a case, willful noncompliance with RSA should certainly toll the statute of limitations.

Doc. no. 62 at ¶ 6.

         Plaintiff's reliance upon Dobe is misplaced. In Dobe, the New Hampshire Department of Health and Human Services (“DHHS”) “issued a notice [on July 9, 1996] stating that [a] report of child abuse [against Christopher Dobe] was founded, notwithstanding the lack of any physical evidence that [his] daughter [the alleged victim] had been sexually abused.” 147 N.H. at 459. In a subsequent divorce proceeding, the marital master made an award of custody that was favorable to Dobe, and raised numerous concerns about the investigation on which DHHS relied to determine that the abuse allegations against Dobe were founded. See Id. Dobe then “appealed the [July 1996] DHHS finding to the DHHS Office of Program Support Administrative Hearings Division, ” id., which ultimately “reversed the earlier finding that the report of plaintiff's sexual abuse of his daughter was founded, ” Id. at 460. In February of 2000, Dobe sued DHHS and various individuals asserting claims arising from the investigation that led to the July 1996 finding. Id. The trial court dismissed the claim against all defendants as time barred, explaining that Dobe's cause of action had accrued on July 9, 1996, the day that DHHS issued its adverse finding, which was more than three years before Dobe filed suit. Id.

         On appeal, Dobe argued that his “administrative appeal of the July 1996 finding tolled the running of the statute of limitations.” Id. After explaining that “the statute of limitations period [may be] ‘tolled during a pending administrative proceeding [if] that proceeding is a prerequisite to pursuit of the civil action, '” Id. at 461-62 (quoting N.H. Div. of Human Servs. v. Allard,138 N.H. 604, 606 (1994)), the New Hampshire Supreme Court affirmed the trial court, ...


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