Gorelik v. Costin CV-08-36-JL 12/31/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Lyubov Y . Gorelik

v. Civil N o . 08-cv-036-JL

Opinion N o .

Kevin R. Costin

O R D E R

The plaintiff, Lyubov Y . Gorelik, M.D., filed this five

count complaint against Kevin R. Costin, in his official capacity

as President of the New Hampshire State Board of Medicine,1 for

violating her rights under

(2000) and the First

and Fourteenth Amendments. The plaintiff seeks declaratory and

injunctive relief, as well as attorney’s fees and costs. The

defendant has filed a motion to dismiss, see Fed. R. Civ. P.

12(b)(2008), contending that: (1) the applicable statute of

limitations has expired, (2) the court should abstain under the

doctrine set forth in Younger v . Harris,

(1981), (3)

the plaintiff has failed to exhaust her state administrative

1 The defendant, in his pleadings, contends that the President of the Board has changed and questions whether he (or any board president) is the proper party. He also asserts that the proper party is the full Board that it cannot be sued under § 1983. For purposes of this motion, the court assumes, without deciding, that Costin is the proper party because under any circumstances, the claim is time-barred. remedies, (4) the defendant is not the proper party, and (5) the

plaintiff has failed to state a claim upon which relief can be

granted.

This court has jurisdiction under

(2000)

(federal question) and

(2000)(civil rights).

After a hearing, and for the reasons set forth below, the court

grants the defendant’s motion to dismiss as the plaintiff’s action is time-barred.2

I. APPLICABLE LEGAL STANDARD

The argument that a claim is barred by the statute of

limitations raises an affirmative defense (not a jurisdictional

defect), and it may be considered under Federal Rule of Civil

Procedure 12(b)(6). See, e.g., Edes v . Verizon Comm’ns, Inc.,

(1st Cir. 2005); Bergstrom v . Univ. of N.H.,

6 , 58 (D.N.H. 1996). When considering a Rule

12(b)(6) motion, the court must take as true all the plaintiff’s

well-pleaded facts and draw all reasonable inferences arising

from them in the plaintiff’s favor. Estate of Bennett v .

2 The parties should not infer that the other grounds for dismissal were without merit. In particular, even if the plaintiff were to solve the numerous procedural deficiencies with her complaint, the court may have had difficulty finding that some of the substantive claims before it were legally cognizable. See, e.g., infra note 1 3 .

2 Wainwright, N o . 07-2169, slip op. at 10 (1st Cir. November 2 6 ,

2008); see, e.g., Gray v . Evercore Restructuring L.L.C.,

(1st Cir. 2008). Although a complaint “does not need

detailed factual allegations,” Bell Atl. Corp. v . Twombly, 127 S .

Ct. 1955, 1965 (2007), this court must reject “unsupported

conclusions or interpretations of law,” Estate of Bennett, slip

op. at 10 (quotations omitted), and the allegations “must be

enough to raise a right to relief above the speculative level.”

Bell Atl. Corp., 127 S . C t . at 1965.3 “Put differently,”

dismissal is appropriate “if the complaint fails to state facts

sufficient to establish a claim to relief that is plausible on

its face.” Gray,

(quotations omitted); see

Estate of Bennett, slip op. at 10 (to survive Rule 12(b)(6)

dismissal, a complaint “must possess enough heft to set forth a

plausible entitlement to relief” (quotations omitted)).

3 Until recently, the pleading standard for a motion to dismiss set a high bar for the movant, requiring that the complaint be maintained “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Conley v . Gibson,

1 , 4 5 , 46 (1957), abrogated by Bell Atl. Corp., 127 S . C t . at 1969. In 2007, however, the Supreme Court retired the “no set of facts” formulation in favor of the standard quoted above, which requires more of the nonmovant. Bell Atl. Corp., 127 S . C t . at 1968-69.

3 II. BACKGROUND

The plaintiff was accepted to a residency program at the

Dartmouth Hitchcock Medical Center, and in June 1997, she applied

to the New Hampshire State Board of Medicine for a resident

training license to practice medicine in New Hampshire.4 Prior

to entering the Dartmouth program, the plaintiff had been removed

from a residency program at New York Methodist Hospital. On July

3 , 1997, the Board granted the plaintiff a conditional temporary

training license “pending completion of [her] institutional

appeals process . . . based on removal from [her] previous

training program.” (Compl. ¶9.) In August 1997, the Board

issued a newsletter containing, among other items, a list of

actions it had taken.5 On that list was a notation that it had

conditionally approved the plaintiff’s license and granted a

4 As required on a motion to dismiss, this court recites the following facts in the light most favorable to the Plaintiff, drawing all reasonably supported inferences in her favor. See, e.g., Gray,

. 5 The court notes that the newsletter posting was originally under a heading titled “disciplinary actions.” The Board has since clarified that with respect to the plaintiff, granting of the temporary license was not a “disciplinary action” but is more accurately listed as a “board action.” At the hearing on this matter, both parties agreed that the term “board action” is accurate. Although the clarification was not made until 2004, the court will use the more accurate term “board action” for purposes of this order except where necessary to describe the relevant events and allegations in the plaintiff’s complaint.

4 temporary training license “during appeal of dismissal from a

prior training program.” The original license was granted for a

period of ninety days, and after numerous extensions, it expired

on April 1 5 , 1998. The plaintiff did not complete the Dartmouth

residency program and her request to renew her temporary license

was denied by the Board in June 1998. The plaintiff returned to

New York where she completed her training and obtained board

certification in psychiatry.

In April 2002, 6 the plaintiff became aware that the

newsletter posting treating her temporary license as a “board

action” was available on the Board’s website.7 She alleges that

internet searches of her name will reveal the 1997 newsletter

classifying her temporary license as a disciplinary action.8 She

further alleges that prior to the issuance of the temporary

license (and her acceptance of that conditional license), she was

not given notice that it was considered by the Board to be an

6 The complaint alleges only that the plaintiff made her discovery “sometime in 2002." For purposes of this motion, the court adopts the date April 2002 from the plaintiff’s later pleadings and oral presentation at the hearing on this matter. 7 The court notes that although it is unclear, it appears from the plaintiff’s compliant that only copies of the newsletter posting is available on the website. 8 Again, the court makes note that the parties agree that the temporary license did not amount to a disciplinary act, but simply a “board action.”

5 action that would be posted publically, or the opportunity to

challenge its classification or withdraw her application.

On February 5 , 2004, the plaintiff petitioned the Board for

a hearing and requested, inter alia, that the Board remove all

information about the conditional license from its website and

remove any characterization of the temporary license as a

disciplinary action. According to the plaintiff, in June 2004,

the Board conditionally agreed to a hearing. It agreed to remove

any notations casting the issuance of the temporary license as a

disciplinary act, listing it instead as a “Board Action,” but

denied her request to remove all prior reference to the order of

conditional approval from its website. Further, according to the

plaintiff, the Board determined that June 2004 order itself would

be a public record and that any further proceedings would require

disclosure of information about her Dartmouth residency and the

1998 denial of her application to renew her license.9 On April

1 , 2005, the plaintiff withdrew her petition in order to avoid

further disclosure.

On February 5 , 2008, the plaintiff filed the instant

complaint with this court alleging violations under 42 U.S.C.

9 The plaintiff, in her pleading, references only a March 2 3 , 2005 letter to her from her prior counsel advising her of this fact. (Compl. ¶ 42.)

6 §1983 and the First and Fourteenth Amendments. Specifically, she

asserts that the defendant violated her due process and equal

protection rights by: (1) failing to provide notice that granting

of a conditional temporary license is considered a disciplinary

action and would be published as such (Count I ) , (2)

characterizing issuance of her conditional temporary license as a

disciplinary act although it is not generally characterized as

such for others (Count I I ) , (3) failing to provide notice and an

opportunity to be heard prior to treating her conditional

temporary license as a disciplinary act (Count I I I ) , and (4)

failing to provide notice and an opportunity to refuse acceptance

of a conditional temporary license that would be characterized as

a disciplinary act (Count I V ) . She further asserts that the

defendant violated her First Amendment rights by threatening to

retaliate against her (in the form of public disclosure about the

hearing) for petitioning the Board for relief (Count V ) .

III. ANALYSIS

The court grants the defendant’s motion to dismiss Counts I-

IV on the basis that the complaint is untimely.10 Section 1983

10 The court also grants the motion with respect to Count V , but on the basis that it is too speculative, see Bell Atl. Corp., 127 S . C t . at 1965, and is not plausible on its face. See Estate of Bennett, slip op. at 1 0 . Establishing a First Amendment

7 does not include its own limitations period, and in the absence

of a federal limitations provision governing a federal cause of

action, courts first look to the most analogous state statute of

limitations. Cf. Edes,

. “The limitation period

applicable to a section 1983 claim is to be found in the general

personal injury statute of the jurisdiction in which the claim

arises.” Gilbert v . City of Cambridge,

1 , 57 (1st Cir.

1991); see, e.g., Wilson v . Garcia,

(1985)(state law limitation period, tolling and revival

retaliation claim necessitates a showing that the plaintiff’s protected conduct was a substantial factor driving the board’s decision. See Centro Medico del Turabo v . Feliciano de Medico,

, 10 (1st Cir. 2005). Although the court must give the plaintiff the benefit of all reasonable inferences which can be drawn from her allegations, the possibility that advice from counsel that the proposed Board hearing would be a matter of public record amounted to retaliation is simply too far fetched to support her claim in light of the other facts set forth in the complaint. See Papasan v . Allain,

(1986)(on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”); cf. Barrington Cove Ltd. P’ship v . R.I. Hous. and Mortg. Finance Corp.,

, 11 (1st Cir. 2001)(Rule 12(b)(6) dismissal appropriate where agency director’s comments did not support evidence of malice); Rubinovitz v . Rogato,

(1st Cir. 1995).

“Mere broad conclusory allegations of wrongdoing in the complaint are not a substitute for meaningful factual context.” Nestor Colon Medina & Sucesores, Inc. v . Custodio,

2 , 42 (1st Cir. 1992). Here, the plaintiff cannot manufacture retaliatory motive from her own counsel’s letter advising her of the consequences of a Board hearing.

8 provisions apply)(later overruled on a limited basis as it

applies to federal laws not applicable here); Moran Vega v . Cruz

Burgos,

4 , 20 (1st Cir. 2008)(section 1983 borrows the

limitations period from state l a w ) . In this case, the applicable

limitations period is New Hampshire’s three-year statute for

personal actions. See N.H. Rev. Stat. Ann. 508:4 (1997).

“Although the limitations period is determined by state law,

the date of accrual is a federal law question.” Greenwood v .

N.H. Pub. Util. Comm’n,

, 14 (1st Cir. 2008)(quotations

omitted). An action accrues when a “plaintiff has a complete and

present cause of action.”

(Quotations omitted.) It is well-

settled that

Section 1983 claims generally accrue when the plaintiff knows, or has reason to know of the injury on which the action is based, and a plaintiff is deemed to know or have reason to know at the time of the act itself and not at the point that the harmful consequences are felt.

Moran Vega,

(quotations, citations, and emphasis

omitted).

In this case, the plaintiff filed this federal action well

outside the three-year limitations period. All of the acts

complained of in Counts I through IV occurred in 1997, the year

that the Board granted her conditional license and published the

newsletter. The plaintiff knew or should have known of the

9 unique nature of her licence by the mere fact of its

“conditional” and “temporary” nature and that she was required to

provide additional information to the Board and re-apply on a

regular basis. Further, First Circuit precedent in the

discrimination context makes clear that accrual begins “at the

first discrete act,” Marrero-Gutierrez v . Molina,

, 6

(1st Cir. 2007), which in this case would be the issuance of a

temporary conditional licence and the 1997 publication of the

newsletter. Further, the court of appeals has specifically

rejected, on more than one occasion, a plaintiff’s contention

that a cause of action can exist in “a state of suspended

animation” until discovery by the plaintiff. Id.; see, e.g.,

Vistamar, Inc. v . Fagundo-Fagundo,

6 , 69 (1st Cir.

2005)(section 1983 claim involving unlawful taking of property

accrued on date of wrongful appropriation).11

11 Even assuming that the action did not accrue until the plaintiff’s discovery of the newsletter in 2002, the case, filed in February 2008, is still untimely. This is true even if the court assumes further, without deciding, that the limitations period was tolled during the pendency of the plaintiff’s aborted petition before the Board. See Moran Vega,

(state law governs the applicable tolling principles); Dobe v . Comm’r,

(2002) (limitations period not tolled during pendency of an administrative proceeding that is a prerequisite to pursuit of the civil action). Thus, even with benefit of the legal doubt, the plaintiff’s action is still untimely because she waited 22 months after discovering the newsletter to file her petition with the Board, and 34 months after her petition was withdrawn before filing suit.

10 The plaintiff contends that her action is timely because the

newsletter remains accessible during an internet search of her

name, and this constitutes a “continuing violation” that puts her

action within the limitations period. “The continuing violation

doctrine creates an equitable exception to the [limitations

period] when the unlawful behavior is deemed ongoing.”

Provencher v . CVS Pharmacy, Div. of Melville Corp.,

,

14 (1st Cir. 1998)(partially overruled on other grounds, see

Crowley v . L.L. Bean, Inc.,

(1st Cir. 2002)). This

narrow doctrine allows a plaintiff to recover for wrongful acts

occurring after the statute of limitations has run. Perez-

Sanchez v . Pub. Hous. Auth.,

(1st Cir. 2008).

This is a limited doctrine, however, and

it does not allow a plaintiff to avoid filing suit so long as some person continues to violate [her] rights. The ‘continuing violation’ doctrine is misnamed. The office of the misnamed doctrine is to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought.

(Ellipses omitted.) Thus, it is not a continuing violation

where the plaintiff suffers continuing harmful effects from an

original unlawful act. See, e.g., id.; Johnson v . Rodriguez,

(1st Cir. 1991); see also, Muniz-Rivera v . United

States,

(D.P.R. 2002)(collecting cases).

Courts must be careful, therefore, to differentiate between a

11 discrete harmful act and “the ongoing injuries which are the

natural, if bitter, fruit of such acts.” Gilbert, 932 F.2d at 58

(quotations omitted). 12

The plaintiff contends that there is a continuing violation

because the Board’s 1997 newsletter continues to be accessible on

the internet when her name is searched. This court disagrees.

Her complaint is focused on discrete acts by the Board in 1997,

namely, the issuance of the conditional temporary license and

publishing of the newsletter. The fact that records of the

Board’s acts can still be accessed by the public on the internet

12 Both parties assume that the continuing violation doctrine applies outside the federal employment context. Where federal civil actions are subject to state statutes of limitations, state law generally governs the determination of whether this equitable exception applies. See Rodriguez Navarez v . Nazario,

8 , 42 (1st Cir. 1990); cf. Edes,

-140 n.8. Until recently, the applicability of the doctrine in New Hampshire was in question. Cf. Pierce v . Metro. Life Ins. Co.,

, 328 n.2 (D.N.H. 2004) (noting that at the time, the continuing violation doctrine did not apply because the New Hampshire Supreme Court had “shown no inclination to incorporate the doctrine as an exception to the state’s general statutes of limitation.” (quotation and brackets omitted)). Recently, however, the New Hampshire Supreme Court indicated its willingness to consider the doctrine’s applicability in tort, see Singer Asset Finance Co., LLC v . Wyner,

(2007)(tortious interference), and noted with approval the general rule that “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.”

(Quotations omitted.) The court thus assumes for the sake of argument, without deciding, that it is applicable, cf. Edes,

(assuming applicability in the ERISA context), and concludes that the plaintiff has not sufficiently alleged a continuing tort.

12 does not constitute a continuing tort, but rather the continuing

effects of an alleged harm.13 The plaintiff cannot succeed

because, like many plaintiffs, she “obfuscates what [the First

Circuit Court of Appeals has] termed the critical distinction

between a continuing act and a singular act that brings

continuing consequences in its roiled wake.” Johnson,

(quotations omitted). 14

13 The Plaintiff attempts to establish “continuing harm” by characterizing as “republishing” each time the public accesses the archived newsletter through an internet search. (See Compl. ¶¶ 2 0 , 29.) When viewed in the context of the specific facts of this case as pleaded in the complaint and explained at oral argument, this act, initiated by a member of the public, cannot be fairly described as “republishing” by the Board; it is merely a “re-accessing” of information by an unrelated individual. Thus, under these facts and circumstances, it cannot constitute a new discrete injury. It is simply an unfortunate continuing effect of the original alleged wrong. Cf. Johnson,

(fact that plaintiff “suffered from the sting” of alleged wrong for may years does not justify extending the limitations period); Muniz-Rivera v . United States,

(in a case involving negligent construction of their homes, flooding of those homes does not constitute a new tort, but a continuing effect of original tortious a c t ) . 14 The plaintiff attempts to cast this case as similar to O’Rourke v . City of Providence,

(1st Cir. 2001) where the court found the continuing violation doctrine applicable in a hostile work environment case. The court in O’Rourke, however, was careful to distinguish sexual harassment cases from others where, as here, there was a single act or triggering event followed by long term adverse consequences of that event. See

. Rather, the court noted that [s]exual harassment serious enough to constitute unlawful discrimination . . . is often a cumulative process rather than a one time event.

(quotation omitted).

13 IV. CONCLUSION

Taking as true all the plaintiff’s well-pleaded facts and

drawing all reasonable inferences therefrom, the plaintiff’s

action is untimely. The defendant’s motion to dismiss (document

no. 9 ) is granted. All other pending motions are denied as moot.

The plaintiff’s claim is dismissed and the clerk shall close the

case.

SO ORDERED.

/s/Joseph N . Laplante Joseph N . Laplante United States District Judge Dated: December 3 1 , 2008

cc: Kenneth Joel Haber, Esq. Richard F. Johnston, Esq. Deborah B . Weissbard, Esq.

14