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Isaacs v. Trustees of Dartmouth College

United States District Court, D. New Hampshire

May 15, 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.

         In an order dated February 5, 2018, the court largely denied plaintiff's motion for leave to amend his First Amended Complaint ("FAC"). However, the court gave him the opportunity to keep his case alive by showing cause why Count I of his proposed Second Amended Complaint ("SAC") is not barred by N.H. Rev. Stat. Ann. ("RSA") § 329:17, IX. Before the court are: (1) plaintiff's motion, pursuant to Rule 60 of the Federal Rules of Civil Procedure, for relief from the court's ruling that it would be futile to amend his FAC by adding the federal Rehabilitation Act retaliation claim he asserted in Count VI of his SAC; and (2) plaintiff's show cause briefing. Both pleadings are duly opposed. For the reasons that follow, plaintiff's motion for Rule 60 relief is denied, and his show cause briefing is insufficient to save Count I of his SAC. Accordingly, plaintiff's case is dismissed in its entirety.

         I. Motion for Rule 60 Relief

         Document no. 7 6 bears the caption "Motion Requesting Relief from Judgment Order on Motion to Amend. Document No. 7 0." In it, plaintiff asks the court to reverse its determination that it would be futile to amend his FAC by adding Count VI of his proposed SAC. Both the Trustees of Dartmouth College ("Trustees") and Dartmouth-Hitchcock Medical Center ("DHMC") object.

         A. The Legal Standard

         Plaintiff seeks relief under Rule 60(b)(1), which provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect." He does not, however, indicate which of the four prongs of Rule 60(b)(1) he is invoking. Be that as it may, regardless of the specific part of Rule 60(b)(1) that plaintiff is relying on, the following principles govern the court's consideration of his motion:

Federal Rule of Civil Procedure 60(b) relieves parties from final judgments only under exceptional circumstances. See Davila-Alvarez v. Escuela de Medicina Universidad Cent, del Caribe, 257 F.3d 58, 63-64 (1st Cir. 2001) (citing Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir. 1986)). A party seeking Rule 60(b) relief must show, at a bare minimum, "that his motion is timely; that exceptional circumstances exist, favoring extraordinary relief; that if the judgment is set aside, he has the right stuff to mount a potentially meritorious claim or defense; and that no unfair prejudice will accrue to the opposing parties should the motion be granted." Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002) (internal citations omitted).

Skrabec v. Town of N. Attleboro, 878 F.3d 5, 9 (1st Cir. 2017); see also Karak, 288 F.3d at 19 ("relief under Rule 60(b) is extraordinary in nature and . . . motions invoking that rule should be granted sparingly") (citing Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19-20 (1st Cir. 1992); Lepore, 792 F.2d at 274.

         B. Discussion

         In Count VI of his proposed SAC, plaintiff asserted that: (1) "[i]n March of 2013 [he] effectively filed a Rehabilitation Act claim with OCR, " doc. no. 51-1 ¶ 115;[1] and (2) in retaliation for filing that complaint, DHMC declined to interview him when he applied for residencies in 2013, 2014, 2015, 2016, and 2017, see Id. ¶¶ 118-120. The court declined to give plaintiff leave to amend his FAC to add Count VI of his SAC for two reasons: (1) his failure to adequately allege the first element of a Rehabilitation Act retaliation claim, i.e., protected conduct, see doc. no. 70, at 38-40; and (2) his failure to adequately allege the third element of such a claim, i.e., a causal connection between protected conduct and an adverse action, see Id. at 40-42.[2] With respect to the third element, the court explained that "for an . . . action to be retaliatory, the person taking that action must have known about the . . . protected conduct at the time he or she took the allegedly retaliatory action." Id. at 40-41. After establishing that rule of law, the court went on to point out that plaintiff's complaint did not allege that anyone who denied him an interview for a residency ever knew about his OCR complaint.

         In the motion now before the court, plaintiff attempts to cure both of the deficiencies that led the court to deny him leave to amend his FAC to add Count VI. He does so by attaching to his motion a letter he received from an OCR attorney in October of 2014 which communicated OCR's decision to dismiss his complaint without investigation because it was untimely. According to plaintiff, "the facts that appear on the face of the attached [letter show] [t]hat he made a Rehabilitation Act Claim and that the Defendants were made aware of that claim when it was served upon them." Doc. no. 76 ¶ 10. However, plaintiff says nothing about why he did not include the facts that appear on the face of the October 2014 OCR letter in Count VI of the proposed SAC he filed in November of 2017. That is fatal to his request for Rule 60(b) relief.

         As the court has noted, entitlement to relief under Rule 60(b) requires a showing of "exceptional circumstances." Skrabec, 878 F.3d at 9. To demonstrate that the circumstances that caused him not to include facts from the OCR letter in his proposed SAC were exceptional, plaintiff must at least say what those circumstances were. See United States v. $29, 373.00 in U.S. Currency, 86 F.Supp.3d 95, 99-100 (D.P.R. 2015) ("Claimants do not elaborate on the circumstances of their mistaken belief that they had filed a claim. Without more, the Court cannot evaluate whether the mistake is justified, excusable, or honest."); 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2858 (3d ed. 2012) (explaining that a party seeking Rule 60(b)(1) relief "must make some showing justifying the failure to avoid the mistake or inadvertence"); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). In other words, "[s]imply alleging the fact of a mistaken belief does not suffice to show an 'exceptional circumstance' warranting Rule 60(b) relief, " $29, 373.00 in U.S. Currency, 86 F.Supp.3d at 100. Here, plaintiff merely attaches the OCR letter to his Rule 60(b) motion. He does not even go so far as to allege mistake, inadvertence, surprise, or excusable neglect, much less identify any circumstances that would allow the court to conclude that his failure to allege facts from the OCR letter in his SAC was a result of a mistake, inadvertence, surprise, or excusable neglect that is justifiable. Thus, he has failed, by a wide margin, to make a showing that would entitle him to Rule 60(b)(1) relief. That alone warrants denial of plaintiff's Rule 60(b) motion.

         However, even if some extraordinary circumstance did prevent plaintiff from alleging facts drawn from the October 2014 OCR letter until now, he has not shown "that if the judgment is set aside, he has the right stuff to mount a potentially meritorious claim." Skrabec, 878 F.3d at 9. In this context, the "right stuff" is an "underlying claim[] [that has] a reasonable chance of success on the merits." Gonalez Rucci v. U.S. INS, 405 F.3d 45, 48 (1st Cir. 2005) (citing Caisse v. DuBois, 346 F.3d 213, 215-16 (1st Cir. 2003)); Beshear v. Weinzapfel, 474 F.2d 127, 132 (7th Cir. 1973) (the movant, if a plaintiff, "must show facts which, if established, might reasonably be said to be a basis for recovery") (emphasis supplied); Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970) (similar); Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310, 1314 n.4 (D.C. Cir. 1986) (suggesting that the movant, a plaintiff, had an obligation to "set forth facts" sufficient to raise the prospect of overcoming an identified defense). Plaintiff's problem is that, notwithstanding his argument to the contrary, the facts in the OCR letter do not establish that any defendant knew about his OCR complaint, and without an allegation of knowledge of the OCR complaint on the part of a defendant who took adverse action against him, plaintiff cannot state a Rehabilitation Act retaliation claim that has a reasonable chance of success on the merits. See Lebr6n, 770 F.3d at 31; Taite v. Shineski, No. 08-cv-258-SM, 2010 WL 745160, at *19 (D.N.H. Mar. 1, 2010) .

         The OCR letter describes Dr. Isaacs's complaint as having been "filed against Dartmouth College (College) and Dartmouth-Hitchcock Medical Center." Doc. no. 76-1, at 1. But, the letter: (1) says nothing about Dr. Isaacs's complaint having been served, by anyone, on either Dartmouth College or DHMC; (2) makes no suggestion that OCR dismissed Dr. Isaacs's complaint in response to arguments advanced by either Dartmouth College or DHMC after they had been served with it; and (3) gives no indication, such as a listing of "cc:" recipients, that the letter was sent to either Dartmouth College or DHMC. Thus, the OCR letter does not support an allegation that any person who reviewed Dr. Isaacs's residency applications had any knowledge of his OCR complaint. For that reason, the letter does not remedy the deficiency the court previously identified in plaintiff's allegation of the third element of a Rehabilitation Act retaliation claim. Plaintiff argues that the OCR letter establishes that DHMC and the Trustees were made aware of his Rehabilitation Act claim "when it was served upon them, " doc. no. 76 ¶ 10, but the letter does not indicate that any Dartmouth entity was ever served with Dr. Isaacs's OCR complaint.

         Apart from attaching the OCR letter to his motion, plaintiff supports his argument on the causation element with little more than his own incredulity. For example, he says: "[g]iven that the original claim was brought against them, there is no plausible way that the Defendants were unaware of it." Doc. no. 76 ¶ 5; see also Id. ¶¶ 7 & 8 (similar expressions of disbelief). Plaintiff's incredulity is no substitute for an adequate factual allegation. Cf. Barchock v. CVS Health Corp., 886 F.3d 43, 48 (1st Cir. 2018) (explaining that for purposes of Rule 12(b)(6), "[w]ell-pleaded facts must be 'non-conclusory' and 'non-speculative'") (quoting Schatz v. Rep. State L' ship Comm., 669 F.3d 50, 55 (1st Cir. 2012)).[3]

         In sum, the facts on the face of the OCR letter provide the court with an insufficient basis for reversing its previous ruling that it would be futile to amend plaintiff's FAC to add the Rehabilitation Act claim he asserted in Count VI of his SAC, because Count VI does not state a claim upon which relief can be granted. See Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996) (explaining that "'[f]utility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted" and that "[i]n reviewing for 'futility, ' the district court applies the same standard of legal sufficiency as applies to a Rule 12(b)(6) motion") (citations omitted); Barchock, 886 F.3d at 48 ("To survive dismissal . . ., the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face") (citations and internal quotation marks omitted); Abraham v. Woods Hole Ocean Inst., 553 F.3d 114, 117 (1st Cir. 2009) (explaining that when proposed amended complaint "still fails to state a claim, the district court acts within its discretion in denying the motion to amend") (citations omitted)). Accordingly, plaintiff's Rule 60 motion is denied.

         II. Show Cause Briefing

         In document no. 70, in addition to ruling that it would be futile to amend plaintiff's FAC to add Count VI of his proposed SAC, the court also ordered plaintiff to show cause why the due process claim he asserts in Count I of his SAC, by means of 42 U.S.C. § 1983, is not barred by RSA 329:17, IX. While Count I does not appear to be barred by RSA 329:17, IX, it is barred by the doctrine of qualified immunity.

         A. Background

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

         Isaacs attended the Keck School of Medicine ("Keck") at the University of Southern California ("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. His suit resulted in two settlement agreements. Plaintiff's allegations concerning the contents of those agreements are not stated with great clarity in his SAC. While plaintiff was obviously under no obligation to do so, he attached 18 exhibits to his original complaint, but did not attach either of the settlement agreements, even though they certainly would qualify as "documentation incorporated by reference in [a] complaint, " Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016) (quoting Rivera-Diaz v. Humana Ins. of P.R., Inc., 748 F.3d 387, 388 (1st Cir. 2014)). Be that as it may, plaintiff's proposed SAC includes the following relevant factual allegations:

Dr. Isaacs entered into two settlement agreements with Keck, one for dismissal of his action against its Deans, and another, dismissal against Keck as an institution. . . .
The Institutional Settlement ordered Dr. Isaacs not to disclose his enrollment at Keck to others, and further, ordered Keck to cancel "all Administrative Charges, " including Isaacs' expulsion from Keck.

         Doc. no. 51-1 ¶¶ 36-37. Plaintiff further alleged that one of the two settlement agreements sealed his disciplinary records at Keck. See Id. ¶ 39. He implies, but does not allege directly, that the agreement that sealed his disciplinary records was the so-called "Institutional Settlement, " Id. ¶¶ 38-39, and he further implies, but does not allege directly, that the Institutional Settlement was the second of the two agreements to be executed. However, in a document he attached to his original complaint, a September 3, 2013, e-mail he sent to Attorney Jeff Cahill, who was affiliated with the New Hampshire Board of Medicine ("Board"), Dr. Isaacs stated that it was the first settlement agreement rather than the second one that sealed his Keck disciplinary records. See doc. no. 3-18, at 1. In a document he attaches to his show-cause brief, a January 29, 2013, e-mail he sent to Penny Taylor, who was also affiliated with the Board, he said the same thing. See doc. no. 77-3, at 2 of 2. For reasons that will become apparent, it is more beneficial to plaintiff to construe his SAC as alleging that his Keck disciplinary records were sealed by the first settlement agreement rather than the second one, so the court will adopt that construction.

         After Dr. Isaacs was dismissed from Keck, he earned an M.D. degree from the American University of the Caribbean, Netherlands Antilles. Then, he began a residency in general surgery at the University of Arizona ("UA"). He resigned after three weeks.

         Next, Dr. Isaacs applied for a residency at DHMC. He did so through the Electronic Residency Application Service ("ERAS"), which is managed by the American Association of Medical Colleges ("AAMC") . In his ERAS application, Dr. Isaacs "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.

         Dr. Isaacs began his DHMC residency in June of 2011. In an application for a training license that he submitted to the New Hampshire Board of Medicine, Dr. Isaacs omitted his attendance at Keck, and when asked whether he had "ever been reprimanded, sanctioned, restricted or disciplined in any activities involving medical education or practice, " doc. no. 3-1, at 3 of 3, he responded in the negative, see id.

         In March of 2012, Dr. Isaacs was dismissed from the DHMC residency program. His letter of dismissal cited both academic deficiency issues and "the omission of material information from [his] Electronic Residency Application Service (ERAS) Application [and] falsification of information provided to ...


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