Richard A. McMenamon II v. New Hampshire Department of Health and Human Services Commissioner Lori Shibinette, et al.

2022 DNH 151

• Court: District Court, D. New Hampshire
• Decided: December 5, 2022
• Docket: 21-cv-479-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard A. McMenamon II

v. Case No. 21-cv-479-PB Opinion No. 2022 DNH 151 New Hampshire Department of Health and Human Services Commissioner Lori Shibinette, et al.

MEMORANDUM AND ORDER

Richard McMenamon has sued three state actors, one of whom is also

his former romantic partner. He seeks both damages and injunctive relief for

alleged violations of federal law pursuant to 42 U.S.C. § 1983. He also asserts

state law claims for damages against his former partner in her capacity as a

private actor. The defendants have challenged McMenamon’s claims in a

motion for summary judgment. Because McMenamon lacks standing to seek

injunctive relief and fails to present a triable claim for damages under federal

law, I grant the defendants’ motion with respect to his federal claims. I also

decline to exercise supplemental jurisdiction over his state law claims and

dismiss those claims without prejudice. I. BACKGROUND

A. Factual Background

McMenamon was previously in a long-term relationship with one of the

defendants, Eileen Rispoli. Doc. 46-6 at 107. McMenamon and Rispoli have

two children together, a nine-year-old and a six-year-old. Id. The couple

separated in the summer of 2019, at which point Rispoli moved into her own

apartment and began working as a Family Specialist with the New

Hampshire Department of Health and Human Services (DHHS). Id. at 110-

111. Despite the separation, McMenamon and Rispoli continued to share

custody of the children. Doc. 46-2 at 3.

Throughout much of their relationship, McMenamon harbored concerns

that Rispoli was abusing their two children. Consequently, since April 2019,

McMenamon has filed more than a dozen reports with the Division for

Children, Youth, and Families (DCYF) alleging that Rispoli abused one or

both children. Id. at 4. All of the reports were either investigated and deemed

unfounded or administratively “screened out” because the allegations did not

rise to the level of child abuse. Id.; Doc. 38-3 at 2. The present action centers

on three events that occurred after McMenamon began filing reports of child

abuse.

Sometime in the summer of 2019, following the separation,

McMenamon stopped receiving certain federal benefits administered by

2 DHHS, including federal food assistance under the Supplemental Nutrition

Assistance Program (SNAP) and his children’s Medicaid health insurance.

Doc. 46-8 at 131. While attempting to determine why his benefits were

terminated, McMenamon learned that a document in his case file at DHHS

had been altered. See id. When applying for benefits, McMenamon submitted

a “custody/meals report” to DHHS that showed he had primary custody of the

two children. Id. Although he had placed his case number at the top of the

document, McMenamon was told by a DHHS representative that the copy on

file had Rispoli’s case number on the header, thereby indicating that she had

primary custody of the children. Id. McMenamon alleges that the document

was forged or altered and led to the unwarranted termination of his benefits.

McMenamon subsequently filed an administrative appeal to challenge

DHHS’s benefits determination. Id. at 185. He received a letter in September

2020 explaining that, although there was “a short period of time (10 days)

that [McMenamon and his children] were not yet open in [his] case,” his

“benefits were transferred . . . with no break in coverage.” Id. The letter went

on to state that, because McMenamon’s “Appeal Hearing reason ha[d] been

resolved,” his appeal would be considered withdrawn unless he notified

DHHS that he wished to proceed with the appeal. Id. McMenamon

acknowledges that his benefits were ultimately restored, but asserts that his

appeal was nonetheless withdrawn without his consent. Doc. 5-1 at 20-21.

3 While adjudicating McMenamon’s benefits claim, DHHS became

concerned that he may have engaged in welfare fraud and assigned fraud

investigator Scot Vinovich to investigate the matter. Doc. 38-4. During the

investigation, Vinovich stated to McMenamon, “You better change your

attitude,” which McMenamon took to be a threat. Doc. 46-5 at 83. Vinovich

ultimately determined that McMenamon had not committed welfare fraud.

Doc. 38-4.

In April 2020, two Gilmanton police officers arrived at McMenamon’s

residence. Doc. 46-8 at 147. The police stated that they were sent by DCYF to

perform a wellness check on the children and investigate McMenamon’s

recent reports of abuse, because COVID-19 precautions precluded DCYF from

visiting the residence. Id. McMenamon asserts that, shortly after arriving,

the police “insinuated that [he] was reporting too much by stating in a

questionable tone the amount of events [he] had reported during the prior

month.” Id. Upon leaving, one of the officers stated “in an aggressive tone”

that “DCYF will be [at the residence] in the morning,” which McMenamon

took to be a threat. Doc. 46-6 at 6. DCYF, however, never showed up. Id.

4 B. Procedural Background

McMenamon, proceeding pro se and in forma pauperis, filed a four-

count complaint in this court against Rispoli, DHHS Commissioner Lori

Shibinette, and DCYF Director Joseph Ribsam. Count I alleged that all three

defendants violated his federal statutory and constitutional rights by (1)

forging a document that deprived McMenamon of his federal benefits, (2)

failing to provide McMenamon with notice and opportunity to be heard prior

to the termination of his federal benefits, and (3) depriving McMenamon of

his right to appeal adverse agency decisions. Doc. 7 at 10. Count II alleged

that all three defendants violated his federal constitutional rights by (1)

failing to enforce child protection laws and (2) retaliating against him for

reporting child abuse. Id. at 10-11. Finally, Counts III and IV alleged that

Rispoli was liable for intentional and negligent infliction of emotional distress

resulting from her alleged abuse of their children. Id. at 11. McMenamon

sought damages on all counts, and injunctive relief on Count II. Id. 1

Ribsam and Shibinette responded to the complaint with a motion to

dismiss. I granted the motion in part by dismissing his damage claims

against them but leaving his claim for injunctive relief in Count II intact.

1 On preliminary review, I dismissed McMenamon’s claims for damages against the defendants in their official capacities, his claim for Medicaid Fraud in Count I, and the portion of Count II alleging that defendants failed to enforce child protection laws. Doc. 10; Doc. 7 at 19.

5 Rispoli did not join in the motion to dismiss. Accordingly, the claims that

remain are federal law claims for damages against Rispoli in Counts I and II,

a federal law claim for injunctive relief against all three defendants in Count

II, and state law claims against Rispoli in Counts III and IV for intentional

and negligent infliction of emotional distress.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Tang v. Citizens Bank, N.A., 821 F.3d

206, 215 (1st Cir. 2016). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v. City of Quincy, 877

F.3d 14, 23 (1st Cir. 2017) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227

(1st Cir. 1996)). A “genuine dispute” exists if a factfinder could resolve the

disputed fact in the nonmovant’s favor. Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d

1, 7 (1st Cir. 2018).

The movant bears the initial burden of presenting evidence that “it

believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Irobe v. U.S. Dep’t of Agric.,

890 F.3d 371, 377 (1st Cir. 2018). Once the movant has properly presented

such evidence, the burden shifts to the nonmovant to designate “specific facts

showing that there is a genuine issue for trial,” Celotex, 477 U.S. at 324, and

6 to “demonstrate that a trier of fact could reasonably resolve that issue in [his]

favor.” Irobe, 890 F.3d at 377 (quoting Borges ex rel. S.M.B.W. v. Serrano-

Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the nonmovant fails to adduce such

evidence on which a reasonable factfinder could base a favorable verdict, the

motion must be granted. Celotex, 477 U.S. at 324. In considering the

evidence, the court must draw all reasonable inferences in the nonmoving

party’s favor. Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 348 (1st

Cir. 2018).

III. ANALYSIS

Rispoli seeks summary judgment on McMenamon’s federal and state

law claims for damages and all three defendants challenge his claim for

injunctive relief. Because these claims employ somewhat different standards,

I address each type of claim separately. I begin with McMenamon’s federal

law claims for damages and then turn to his claim for injunctive relief. After

disposing of his federal law claims, I conclude by addressing his state law

claims. 2

2 McMenamon also submitted a “Motion for Good Cause Based Upon Exceptional Events and Late Acquired Information” through which he seeks additional discovery and the opportunity to name additional defendants past the relevant deadlines. Doc. 43 at 3. Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, a court may extend past deadlines only if there is good cause and the moving party establishes that it failed to act in a timely manner “because of excusable neglect.” See Fed. R. Civ. P. 6(b); see also Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23,

7 A. Claims for Damages Under Federal Law

Counts I and II seek damages from Rispoli. Count I centers on the

termination of McMenamon’s federal benefits and subsequent appeal,

whereas Count II alleges that Rispoli retaliated against him for reporting

child abuse.

Although these claims are based on different legal theories, each must

satisfy the fundamental requirements of a Section 1983 claim. “Section 1983

provides a private right of action against state actors—that is, public officials

acting under color of state law—who deprive individuals of rights confirmed

by federal constitutional or statutory law.” Camilo-Robles v. Zapata, 175 F.3d

41, 43 (1st Cir. 1999). “Section 1983 requires three elements for liability:

deprivation of a right, a causal connection between the actor and the

deprivation, and state action.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 41

26 (1st Cir. 2013). McMenamon argues that an extension is warranted here because (1) the defendants waited too long to produce discovery and ultimately only provided him with electronic discovery and (2) a DHHS employee that he spoke to about his benefits was recently murdered. Neither of these reasons demonstrate excusable neglect. McMenamon acknowledges that he was ultimately served with discovery well before the deadline, and fails to explain how the provision of electronic, rather than paper, discovery impeded his ability to meet the relevant deadlines. Moreover, McMenamon knew of his interactions with the deceased DHHS employee prior to the discovery deadline, and therefore could have submitted a timely request for discovery relating to her knowledge of the matter. The fact that the employee was subsequently murdered has no bearing on McMenamon’s case, nor does it reveal any new or pertinent information. Accordingly, McMenamon’s motion is denied.

8 (1st Cir. 2009). Satisfaction of the second element requires the plaintiff to

prove “an affirmative link, whether through direct participation or through

conduct that amounts to condonation or tacit authorization, between the

actor and the underlying violation.” Id. at 49 (quoting Carmilo-Robles, 175

F.3d at 44) (cleaned up). I evaluate each count separately using these

standards.

1. Denial of Federal Benefits (Count I)

Count I alleges that Rispoli forged a document that caused

McMenamon to lose his benefits, failed to provide him with notice and an

opportunity to be heard before his benefits were terminated, and withdrew

his appeal without his consent. Rispoli argues that McMenamon is not

entitled to a trial on Count I because he cannot tie her to the alleged violation

of his federally protected rights. I agree.

First, as to the allegations of forgery, McMenamon has failed to

produce the altered version of the “custody/meals report” or provide any other

evidence to support his assertion that Rispoli altered the document in

question. McMenamon’s “[c]onclusory allegations and unsupported

speculation” that Rispoli may have altered the document “cannot defeat

summary judgment.” See López-López v. Robinson Sch., 958 F.3d 96, 109 (1st

Cir. 2020).

9 McMenamon’s claims that Rispoli terminated his benefits and

subsequent appeal fare no better. Although it is undisputed that Rispoli’s

position at DHHS required her to adjudicate claims for certain benefits, there

is no evidence that she took any action with regards to McMenamon’s

benefits or appeal. To the contrary, an audit of DHHS’s internal case

management system revealed that Rispoli never accessed, let alone took any

action on, McMenamon’s case file. Doc. 38-2 at 2.

McMenamon does not contest Rispoli’s lack of direct access to his file,

but rather asserts that she must have worked with another employee to

manipulate McMenamon’s benefits and appeal while evading detection.

McMenamon comes to this conclusion based on an email he received from

Rispoli stating that she was aware his benefits “claim [wa]s being

investigated.” Doc. 46-8 at 290. According to McMenamon, Rispoli could only

have gained awareness of his claim and its subsequent investigation if she

was involved in the matter. Doc. 39 at 3.

But the record reveals a far more innocuous explanation for Rispoli’s

statement. As noted above, McMenamon provided DHHS with a

“custody/meals report” that showed he had primary custody of the two

children. Doc. 46-8 at 131; Doc. 39-1 at 3-4. This assertion, if true, would

warrant a reduction in Rispoli’s own benefits. See Doc. 38-2 at 2. Rispoli

testified that, pursuant to DHHS policy, she received a letter notifying her of

10 McMenamon’s claim so that she could respond before changes were made to

her benefits. Doc. 46-6 at 182-183. As McMenamon has not offered any

evidence to counter this assertion, I accept Rispoli’s explanation as true. See

Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010) (“the evidence from the

moving party as to specific facts can be accepted by the court where no

contrary evidence is tendered by the party opposing summary judgment.”).

Because Rispoli learned of McMenamon’s claim through her capacity as

a private beneficiary, there is no reason to conclude that Rispoli’s knowledge

of McMenamon’s claim indicates that she participated in any way in the

conduct on which the claim is based. Absent any other evidence of Rispoli’s

involvement, McMenamon cannot demonstrate the required link between

Rispoli and the alleged violation. Accordingly, Rispoli is entitled to summary

judgment on Count I.

2. First Amendment Retaliation (Count II)

In Count II, McMenamon asserts that Rispoli retaliated against him for

reporting child abuse in violation of his rights under the First Amendment. 3

To support this claim, McMenamon asserts that (1) DHHS fraud investigator

3 In his objection to the defendants’ motion for summary judgment, McMenamon asserts that the defendants are liable for “an intentional ‘failure to protect’ his children and others” from child abuse and references evidence that purports to prove as much. Doc. 39 at 5. Because the portion of Count II to which these arguments pertain was dismissed at the preliminary review stage, I do not address McMenamon’s assertions or his proffered evidence.

11 Vinovich threatened him by stating, “You better change your attitude,” Doc.

46-5 at 83, and (2) two Gilmanton police officers threatened him by stating

“in an aggressive tone” that DCYF would come to his house in the morning,

Doc. 46-6 at 6. 4

As I have explained, a plaintiff in a Section 1983 action must prove “a

causal connection between the actor and the [alleged] deprivation” of rights.

Sanchez, 590 F.3d at 41. McMenamon does not even assert that Rispoli

played any role in the alleged threats, let alone offer evidence to support such

a claim. Accordingly, Rispoli is entitled to summary judgment on

McMenamon’s claim for damages in Count II. 5

B. Claim for Injunctive Relief Under Federal Law

McMenamon also seeks injunctive relief in Count II to prevent future

acts of retaliation. Although not raised by the parties, I conclude that

McMenamon lacks standing to pursue injunctive relief. See Pagan v.

4 While McMenamon alleges other purported threats in his unverified complaint, he does not produce evidence of any such threats. Because such unsupported allegations cannot present a genuine dispute of material fact, I do not consider them in ruling on the defendants’ motion for summary judgment. See Goguen v. Allen, 780 F.3d 437, 457 n.58 (1st Cir. 2015).

5 To the extent McMenamon asserts that Rispoli retaliated against him for exercising his First Amendment rights by terminating his benefits or subsequent appeal, such a claim cannot survive in light of my conclusion that McMenamon has not offered sufficient evidence that Rispoli was involved in his benefits claim.

12 Calderon, 448 F.3d 16, 26 (1st Cir. 2006) (“A federal court must satisfy itself

as to its jurisdiction, including a plaintiff’s Article III standing to sue, before

addressing his particular claims, regardless of whether the litigants have

raised the issue of standing.”).

“Article III standing presents a question of justiciability; if it is lacking,

a federal court has no subject matter jurisdiction over the claim.” See Katz v.

Pershing, LLC, 672 F.3d 64, 75 (1st Cir. 2012). A plaintiff bears the burden of

“establish[ing] standing for each claim and for each form of relief sought.” See

Donahue v. City of Boston, 304 F.3d 110, 116 (1st Cir. 2002). In order to

demonstrate standing to pursue injunctive relief, a plaintiff must “establish a

real and immediate threat resulting in a sufficient likelihood that [he] will

again be wronged in a similar way.” Gray v. Cummings, 917 F.3d 1, 19 (1st

Cir. 2019) (quoting Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376

(1st Cir. 1992)) (cleaned up). This burden is not satisfied by proof that a

plaintiff “has been injured by an unlawful practice” in the past or that he

“‘could be’ subjected [to a similar injury] in the future[.]” Steir v. Girl Scouts

of the U.S.A., 383 F.3d 7, 16 (1st Cir. 2004). Rather, a plaintiff must show

that “the prospect of harm [has] an ‘immediacy and reality.’” Id. (quoting

Golden v. Zwickler, 394 U.S. 103, 109 (1969)). This is frequently shown

through evidence that “the defendant had, at the time of the injury, a written

policy, and that the injury stems from that policy” or that “the harm is part of

13 a pattern of officially sanctioned behavior, violative of the plaintiffs’ federal

rights.” See Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir. 2014) (quoting

Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001)) (cleaned up).

McMenamon has not identified sufficient evidence to support a claim

that he is likely to face retaliation in the future. The retaliation he complains

of occurred over two years ago and has not recurred, despite the fact that

McMenamon has continued to file reports of abuse. Moreover, there is no

evidence in the record that any of the defendants knew of, let alone officially

sanctioned, the earlier threats. At most, the evidence indicates “a relatively

few instances of violations by individual [state actors], without any showing

of a deliberate policy on behalf of the named defendants.” See City of Los

Angeles v. Lyons, 461 U.S. 95, 104 (1983). Such a showing is insufficient to

confer standing to seek injunctive relief. Id. Accordingly, I lack jurisdiction to

consider McMenamon’s claim for injunctive relief.

C. State Law Claims

McMenamon also asserts state tort law claims against Rispoli for

intentional and negligent infliction of emotional distress based on her alleged

abuse of their children. My jurisdiction to consider those claims rests on 28

U.S.C. § 1367, which confers supplemental jurisdiction over state law claims

that relate to federal law claims. Generally, “[w]hen the federal-law claims

have dropped out of the lawsuit in its early stages and only state-law claims

14 remain, the federal court should decline the exercise of jurisdiction by

dismissing the case without prejudice.” Borrás-Borrero v. Corporación del

Fondo del Seguro del Estado, 958 F.3d 26, 37 (1st Cir. 2020) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Because all of

McMenamon’s federal claims have been dismissed, I decline to exercise

supplemental jurisdiction over his state law claims. Accordingly, Counts III

and IV are dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, McMenamon’s motion for good cause (Doc.

43) is denied. Defendants’ motion for summary judgment as to the federal

claims (Doc. 38) is granted, and Rispoli’s motion for summary judgment as to

the state law claims (Doc. 46) is denied as moot. Summary judgment is

granted in favor of the defendants as to Counts I and II, whereas Counts III

and IV are dismissed without prejudice. The clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED. /s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

December 5, 2022

cc: Richard A. McMenamon II, pro se Counsel of record