Brady v. Somersworth School Dist.

2016 DNH 100

• Court: District Court, D. New Hampshire
• Decided: June 13, 2016
• Docket: 16-cv-069-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lisa Marie Brady

v. Civil No. 16-cv-069-JD Opinion No. 2016 DNH 100 Somersworth School District, School Board, et al.

O R D E R

Lisa Marie Brady, proceeding pro se, brings federal and

state claims against the School Board of the Somersworth School

District; Jeni Mosca, the Superintendent of Schools; Pamela

MacDonald, the Special Education Director; and Jeanne Kincaid,

counsel for the school district, arising from the termination of

Brady’s employment. Kincaid moves to dismiss the claims against

her pursuant to Federal Rule of Civil Procedure 12(b)(6). Brady

did not file a response to the motion.

Standard of Review

In considering a motion under Rule 12(b)(6), the court

assumes the truth of the properly pleaded facts and takes all

reasonable inferences from those facts that support the

plaintiff’s claims. Mulero-Carrillo v. Roman-Hernandez, 790

F.3d 99, 104 (1st Cir. 2015). The court also considers documents submitted with the complaint, “matters of public

record, and facts susceptible to judicial notice.” Guadalupe-

Baez v. Pesquera, --- F.3d ---, 2016 WL 1592690, at *2 (1st Cir.

Apr. 20, 2016). Conclusory legal allegations, however, are not

credited for purposes of a motion to dismiss. Id. at *3. Based

on the properly pleaded facts, the court determines whether the

plaintiff has stated “a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Background

The allegations in the complaint are not presented in a

coherent sequential narrative but instead state legal

conclusions with reference to documents and data submitted with

the complaint. The following background information pertaining

to the claims against Jeanne Kincaid is summarized from the

complaint.

Brady is a licensed special education teacher who was

tenured in the Somersworth School District and was working at

the Somersworth Middle School. While Brady was working there,

staff in the school district made a film called “Axel” about a

special education student in the district. The film was funded

by an educational grant. Brady disagreed with the methods that

were used and shown in the film.

2 In September of 2012, Brady complained to the

administrators of the Somersworth School District about the film

and also filed complaints of criminal fraud based on the grant

for the film with “multiple NH State and federal agencies.”

Brady was dissatisfied with the responses to her complaints and

notified the press about her charges of criminal fraud against

the Somersworth School District. In March of 2013, Pamela

MacDonald put a warning in Brady’s employee file. Brady

disputed the warning with a written rebuttal and a grievance.

In March of 2014, Mosca accused Brady of violating

RSA 141-H:2 and transferred Brady from the middle school to an

elementary school in the district.1 Brady’s counsel accused the

school district of violating New Hampshire’s Whistleblower Act.

Brady made charges of educational grant fraud against Mosca,

MacDonald, and others to the New Hampshire Commissioner of

Education. In September and October of 2014, Brady tried

unsuccessfully to appeal the decision to transfer her to the New

Hampshire Department of Education. Brady also brought a

1 Chapter 141-H is titled “Genetic Testing,” and RSA 141-H:2 provides the conditions under which genetic testing may be done. Mosca’s accusation against Brady arose from a dispute between Brady and another staff member, during which Brady sent samples of the staff member’s saliva for testing. Mosca accused Brady of sharing the results of the test with other members of the staff.

3 complaint to the New Hampshire Department of Labor, accusing the

Somersworth School District of violating the Whistleblowers’

Protection Act.2

Mosca hired an investigator to address the issues of

Brady’s complaints and activities. The investigator issued a

report on December 4, 2014, with findings that Brady had

violated the Family Educational and Privacy Act and the

Individuals with Disabilities Education Act, had “behaved in a

non-professional manner, in violation of the Somersworth Staff

ethics policy,” and was insubordinate to the superintendent.

Mosca recommended that Brady be terminated.

A hearing was held before the school board over a period of

three days in January of 2015. The school board hired an

attorney, John Teague, to act as a hearing officer and to advise

the school board. After the hearing, the school board found

that Brady had acted in an unprofessional manner by having a

staff member’s DNA tested, that her communications with parties

outside the school district about the student involved in the

2 The complaint provides little information about the Department of Labor proceedings. The exhibit identified as Department of Labor documents includes only the school district’s motion to dismiss, Brady’s response, a letter to Brady from the Commissioner of the New Hampshire Department of Education, and a document identified as Brady’s complaint of educational grant fraud filed with the New Hampshire Department of Justice.

4 film violated federal law and school district policies, and that

Brady abandoned her position at the elementary school after her

transfer there. Brady was terminated on January 20, 2015.

Jeanne Kincaid is an attorney with the firm of Drummond

Woodsum in Portsmouth, New Hampshire. Kincaid represented the

school district during the Department of Labor proceedings and

during Brady’s termination hearing before the Somersworth school

board.3 Brady challenges Kincaid’s actions taken as counsel for

the school district.

Discussion

Although the complaint does not set forth separate claims

in counts, it appears that Brady intends to bring federal claims

under 42 U.S.C. § 1983 against Kincaid for violating her rights

to due process and free speech and state law claims for

defamation and violation of RSA 638:14. Kincaid moves to

dismiss the claims against her on the grounds that Brady

received due process, that Kincaid is not a state actor for

purposes of Brady’s federal claims under § 1983, that Kincaid is

immune from liability for the state law claims, that Kincaid did

not use legal process against Brady, that Kincaid did not

3 The school board held another hearing in February of 2015 on Brady’s grievance under the Collective Bargaining Agreement that challenged the school district’s conclusion that she had violated RSA 141-H:2. The grievance was denied.

5 violate her legal or ethical duties, and that Kincaid did not

terminate Brady’s employment.4 Brady did not file a response to

the motion to dismiss, and therefore, she provides no opposition

to the matters Kincaid raises.

A. Federal Claims

Brady brings claims under § 1983 that Kincaid violated her

rights to due process and free speech. Section 1983 provides a

cause of action against a person who violates federal law while

acting under color of state law. Santiago v. Puerto Rico, 655

F.3d 61, 68 (1st Cir. 2011). Therefore, to allege a cognizable

claim under § 1983, a plaintiff must provide facts to show that

the defendant acted under color of state law and that the

defendant deprived the plaintiff of federally secured rights.

Id. at 68.

A private party cannot be liable under § 1983 unless the

plaintiff can show that the defendant’s action “can be

classified as state action.” Jarvis v. Village Gun Shop, 805

F.3d 1, 8 (1st Cir. 2015). “It is only in rare circumstances

Kincaid interprets the complaint to allege additional state 4

claims for violation of her professional ethical obligations and for wrongful termination. Because Kincaid did not represent Brady or owe her any professional duty and did not terminate her employment, to the extent that Brady intended to bring those claims, they are meritless.

6 that private parties can be viewed as state actors.” Id.

(internal quotation marks omitted). “The Supreme Court has

mapped out three routes that can lead to a finding that a

private party ‘may fairly be said to be a state actor,’” which

are joint action with the state, performing a public function,

and state compulsion. Jarvis, 805 F.3d at 8 (quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

Generally, private attorneys who are representing clients

are not state actors for purposes of § 1983. See Polk County v.

Dodson, 454 U.S. 312, 318 (1981); Glotfelty v. Karas, 512 F.

App’x 409, 414 (5th Cir. 2013); Angelico v. Lehigh Valley Hosp.,

Inc., 184 F.3d 268, 277 (3d Cir. 1999); K.D. v. G.T.N., 2016 WL

612744, at *3-*4 (W.D. Pa. Feb. 16, 2016); Smith v. McMaster,

2015 WL 5178507, at *8 (D.S.C. Sept. 3, 2015); Rose v. City of

Sierra Vista, 2015 WL 6768979, at *4 (D. Ariz. Aug. 24, 2015).

A private attorney does not become a state actor by representing

a public entity. Dyer v. Maryland State Bd. of Educ., --- F.

Supp. 3d ---, 2016 WL 2939740, at *10 (D. Md. May 20, 2016).

Similarly, a private attorney hired to represent a school

district is not a state actor. Watson v. Grady, 2010 WL

3835047, at *8 (S.D.N.Y. Sept. 30, 2010) (citing cases).

There is no dispute that Kincaid is an attorney in private

practice and is not a state employee. She was hired by the

7 school district to represent the district during its proceedings

with Brady. Brady provides no factual allegations that suggest

Kincaid’s actions fit one of the three circumstances when a

private party may be deemed to have engaged in state action.

Instead, the allegations in the complaint show that Kincaid

acted as counsel for the school district and was not a state

actor for purposes of § 1983.

Because Brady has not alleged facts to show that Kincaid

was a state actor during the relevant events, her claims against

Kincaid under § 1983 must be dismissed.

B. State Claims

Brady’s complaint is construed to raise two state law

claims. She alleges that Kincaid violated RSA 638:14 by

“prosecuting” her for violating RSA 141-H:2 in the context of

the school board termination proceeding. Brady also alleges

that Kincaid defamed her by making reference to Brady’s

violation of RSA 141-H:2 during the Whistleblowers’ Protection

Act proceeding before the Department of Labor.

1. Violation of RSA 638:14

RSA 638:14 is part of New Hampshire’s criminal code. The

statute provides that “[a] person is guilty of a misdemeanor

who, with a purpose to procure the compliance of another with a

8 request made by such person, knowingly sends, mails or delivers

to such a person a notice or other writing which has no judicial

or other sanction, but which [simulates legal process].” If

Brady intended to bring a claim against Kincaid for violating

RSA 638:14, the claim is meritless.

Generally, violation of a criminal statute does not provide

a private cause of action. See Berry v. Watchtower Bible &

Tract Society of N.Y., Inc., 152 N.H. 407, 411 (2005); see also

Tracy v. Hayward, 2005 WL 757573, at *1 (D. Me. Feb. 24, 2005).

Brady has not shown that the New Hampshire Supreme Court

recognizes a private cause of action for violation of RSA

638:14. Federal court is not an appropriate forum to raise a

new and novel theory of state law. See Rared Manchester NH, LLC

v. Rite Aid of N.H., Inc., 693 F.3d 48, 54 (1st Cir. 2012).

In addition, Brady alleges no facts to show or even suggest

that Kincaid simulated legal process or sought to obtain Brady’s

compliance with a request Kincaid had made. The complaint lacks

facts to show that Kincaid wanted Brady’s compliance and that

she sent, mailed, or delivered any notice to Brady which

simulated a document of legal process. Therefore, to the extent

Brady intended to bring a claim for violation of RSA 638:14, the

claim is dismissed.

9 2. Defamation

Brady alleges that Kincaid defamed her by stating during

the proceeding before the New Hampshire Department of Labor that

Brady’s actions “contravened” New Hampshire law on genetic

testing.5 Brady initiated that proceeding in October of 2014

with charges that the school district retaliated against her in

violation of the Whistleblower Act. Kincaid represented the

school district in the Department of Labor proceeding.

To state a claim of defamation under New Hampshire law, a

plaintiff must allege facts that show “the defendant failed to

exercise reasonable care in publishing a false and defamatory

statement of fact about the plaintiff to a third party, assuming

no valid privilege applies to the communication.” Thomas, 155

5 To the extent Brady may have intended to allege defamation based on a statement by Kincaid that is reflected in the minutes of the Somersworth School Board grievance hearing held on February 16, 2015, that effort is unavailing. The statement that Brady quotes is taken from the minutes of the hearing where Kincaid said, in pertinent part, that “you [the school board] made an absolute finding on page 5 of your decision [to terminate Brady’s employment] that in fact Ms. Brady’s conduct violated RSA 141-H:2.” Because it is undisputed that the school board did make that finding, Kincaid’s statement is true and cannot be grounds for a defamation claim. See Complaint, Exhibit 21, Finding 1 (“The Board found (by a vote of 7 yes, 1 abstention) that the behavior violated RSA 141-H:2.”); see also Thomas v. Tel. Publ’g Co., 155 N.H. 314, 335 (2007) (“One who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true.”) (internal quotation marks omitted).

10 N.H. at 321. Kincaid contends the defamation claim must be

dismissed because her statement in the motion filed in the

Department of Labor proceeding was privileged based on the

protection provided to statements made in the context of

judicial and quasi-judicial proceedings.6

Under the Whistleblowers’ Protection Act, RSA chapter 275-

E, if certain conditions are met, an employee “may obtain a

hearing with the commissioner of labor or a designee appointed

by the commissioner.” RSA 275-E:4, I. Following a Department

of Labor hearing, the commissioner or the appointed designee

will render judgment on the complaint and order appropriate

remedies. Id. The judgment may be appealed pursuant to RSA

541. RSA 275-E:4, II.

“It is well established that statements made in the course

of judicial proceedings are absolutely privileged from liability

in civil actions, provided they are pertinent to the subject of

the proceedings.” Pickering v. Frink, 123 N.H. 326, 330 (1983);

see also Hugel v. Milberg, Weiss, Bershad, Hynes & Lerach, LLP,

6 Brady cites the following statement, which was part of the school district’s motion to dismiss Brady’s Whistleblower Act charges: “As supported by Superintendent Mosca’s Affidavit and accompanying documentation, Ms. Brady engaged in highly disruptive conduct in the workplace which violated the employee’s privacy and contravened state law barring genetic testing absent express consent.”

11 175 F.3d 14, 16 (1st Cir. 1999); Restatement (Second) of Torts,

§ 587 (1977). “Judicial proceedings include all proceedings in

which an officer or tribunal exercises judicial functions

. . . .” Restatement (Second) of Torts, § 587, comment f. The

absolute privilege afforded to statements made in judicial

proceedings has been applied to protect filings made in

proceedings before other tribunals, including states’

Departments of Labor. See Caroll v. ABM Janitorial Services-MID

Atlantic, Inc., 970 F. Supp.2d 292, 299-300 (D. Del. 2013);

Burnett v. Trinity Institution Homer Perkins Ctr., Inc., 2011 WL

281023, at *5 (N.D.N.Y. Jan. 25, 2011); Marshall v. FedEx Ground

Pkg. Sys., Inc., 2010 WL 3529307, at *8 (M.D. Pa. July 13,

2010); Lowe v. Capital One, Nat’l Ass’n, 2009 WL 3149598, at *2-

*3 (W.D. La. Sept. 25, 2009).

The Department of Labor proceeding at issue here had

sufficient similarity to a judicial proceeding to make the

absolute privilege available. Brady does not contest the

judicial nature of the proceeding. Because Kincaid’s statement

cited by Brady was part of a motion filed in the Department of

Labor proceeding, it is privileged and cannot serve as a basis

for Brady’s defamation claim.

12 Conclusion

For the foregoing reasons, Jeanne Kincaid’s motion to

dismiss (document no. 11) is granted. All claims against her

are dismissed.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

June 13, 2016

cc: Demetrio F. Aspiras, III, Esq. Lisa Marie Brady, Esq. Brian J.S. Cullen, Esq. Melissa A. Hewey, Esq.