United States District Court, D. New Hampshire
Dr. Jeffrey Isaacs
Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth-Hitchcock Medical Center
McCafferty United States District Judge.
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).
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.
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.
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. 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). 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).
Section 1983 Claims (Count I)
otherwise indicated, the facts recited below are drawn from
plaintiff's FAC or previous orders in this case.
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.
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
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.
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. 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.
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.
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
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
f. Fail[ing] to allow [his] reasonable request to participate
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.
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¶
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.
court begins its discussion with Count 1 of the FAC, and then
turns to the same count in the SAC.
Cause Briefing (Count I of FAC)
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”)
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.
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)).
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, 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.
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. 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.
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,
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.
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
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.
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.
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