Collins v. University of New Hampshire

United States Court of Appeals
For the First Circuit

No. 10-2316

JOHN COLLINS,

Plaintiff, Appellant,

v.

UNIVERSITY OF NEW HAMPSHIRE; BRUCE MALLORY, in his official
capacity as Provost and Executive Vice President of the
University of New Hampshire; ROBERT C. WHITTEN, in his official
capacity as Police Officer of the University of New Hampshire
Police Department,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. Magistrate Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Paul McEachern, with whom Shaines & McEachern, PA, was on
brief for appellant.
Martha Van Oot, with whom John L. Arnold and Orr & Reno, PA,
was on brief for appellees.

December 20, 2011
 TORRUELLA, Circuit Judge. John Collins, ("Collins"), a

professor at the University of New Hampshire ("UNH"), was arrested

and charged with stalking and disorderly conduct after unleashing

an expletive-filled tirade against a colleague whom he suspected of

causing him to receive a parking ticket. Although the charges were

later dismissed, Collins sued UNH and various UNH officials for

false arrest, defamation, and violation of his due process rights.

The district court granted judgment on the pleadings for the

defendants on the false arrest counts, and later granted summary

judgment for the defendants on the due process and defamation

counts. See Collins v. Univ. of N.H. (Collins I), No. 09-cv-78,

2010 U.S. Dist. LEXIS 26436 (D.N.H. March 15, 2010); Collins v.

Univ. of N.H. (Collins II), 746 F. Supp. 2d 358 (D.N.H. 2010).

Collins now appeals these rulings. After careful review, we affirm

the decisions of the district court.

I. Background

A. Outburst and Subsequent Criminal and Disciplinary Proceedings

Collins is a tenured associate professor of Biochemistry

and Molecular Biology in the College of Life Sciences and

Agriculture ("COLSA") at UNH. At the time of the incidents

underlying this case, he was also the Chair of the Department of

Biochemistry and Molecular Biology. On the morning of June 28,

2007, Collins received a parking ticket from UNH Parking Services

for being parked in a loading zone beyond the 30-minute limit.

-2-
Collins suspected that one of his colleagues, Professor Stacia

Sower ("Sower"), had reported his car to Parking Services, as she

had done on a previous occasion. As Collins waited for the

elevator in the lobby of Rudman Hall, the building that housed his

office and Sower's, he encountered Bernadine Schultz ("Schultz"),

an assistant to Professor Sower, and Mihael Fremat ("Fremat"), a

graduate student. Schultz observed that Collins appeared agitated

and suggested that he let out his angry thoughts. Collins

responded with an expletive-laden tirade against Sower, stating

several times that he could "kill that fucking bitch." Collins

also kicked a large trash can. Six people, including Schultz and

Fremat, either saw or heard Collins's outburst.

Soon afterwards, Sower passed Collins in the hallway, but

the two exchanged no words or gestures. At around 1:00 p.m.,

Collins went to the office of COLSA Dean William Trumble

("Trumble") to report his outburst. Collins was calm and

acknowledged that his conduct was inappropriate. He vowed not to

repeat such conduct.

Sower was apparently not perturbed when she first heard

about Collins's outburst. Witnesses reported that Sower shrugged

her shoulders and said, "no big deal, oh yeah, that's John

Collins." Nevertheless, at approximately 3:00 p.m., Schultz

informed Collins that she had reported his outburst to UNH Police.

Later, at around 5:30 p.m., two UNH police officers approached

-3-
Collins and told him that Sower had reported that she was fearful

of his presence in Rudman Hall. Collins assured the officers that

he planned to be in the building only briefly, and left soon

afterwards.

At around the same time, various UNH administrators and

UNH Police Chief Paul Dean ("Dean") exchanged emails discussing the

filing of criminal charges against Collins. The emails indicate

that Dean and the administrators planned to have UNH Police charge

Collins with disorderly conduct. The officials also discussed

whether or not UNH should issue a press release about the incident.

Kim Billings ("Billings"), a UNH spokeswoman, proposed two options.

The first option was to proactively issue a press release.

Billings suggested that this option might be appropriate "given the

heightened awareness around violence on campus." The second option

was to draft a press release but wait to issue it until the media

contacted UNH. Billings wrote that the first option "seems too

strong at first blush, but again, we are just erring on the side of

over-communicating given Va. Tech." "Va. Tech." referred to the

April 6, 2007 shooting at Virginia Polytechnic Institute ("Virginia

Tech") in which thirty-two people were killed.

The next morning, June 29, 2007, UNH campus police

arrested Collins on a warrant charging not only disorderly conduct,

but also stalking. In his sworn statement in support of the arrest

warrant, UNH Police Officer Robert C. Whitten ("Whitten") averred

-4-
that Collins engaged in a course of conduct that caused Sower to

reasonably fear for her safety. The same morning, Sower filed a

petition with the Superior Court in Strafford, New Hampshire,

seeking a restraining order preventing Collins from entering the

Rudman complex and coming near Sower or her students. The court

denied this request, but issued an order restraining Collins from

having any direct or indirect contact with Sower.

Also on the morning of June 29, Professor Rick Cote

("Cote"), a faculty member in COLSA, learned that UNH Provost Bruce

Mallory ("Mallory") planned to ban Collins from the campus. Cote

and Alberto Manelo ("Manelo"), the Associate Dean of COLSA, met

with Mallory to protest this plan, telling Mallory that they did

not think Collins posed a risk to anyone. Mallory was not swayed,

however, and referred to the Virginia Tech incident in his

conversation with Cote and Manelo.

The ban went into effect the afternoon of June 29.

Collins was also placed on administrative leave with pay and

suspended from his department chair position. At approximately

5:00 p.m., Mallory had an email sent to all COLSA faculty and staff

containing a press release announcing the arrest. The email also

stated that Collins had been banned from campus and instructed that

"[a]nyone who sees Dr. Collins anywhere on campus should avoid

contact with him and immediately notify the UNH Police Department."

-5-
 Over the next few months, various faculty members

complained to Mallory about his treatment of Collins and about

disruptive behavior by Sower. On August 20, 2007, Collins and his

counsel met with Mallory. Collins provided his account of the

incident and asked that the ban be lifted. Mallory invited Collins

to explain in writing why the ban should be lifted. Collins

responded on September 4, 2007. In the meantime, on August 30,

2007, Mallory received the report regarding UNH's investigation

into the incident, which included interviews with over twenty

faculty and staff. The people interviewed did not view Collins as

being a threat to anyone, and the report concluded that the

incident did not rise to the level of a hostile work environment

under UNH's Discriminatory Harassment Policy.

On September 10, 2007, Mallory responded to Collins's

letter requesting that the ban be lifted. Mallory found that

Collins behaved unprofessionally, exercised poor judgment, "failed

to be an effective leader and role model," and created an "air of

intimidation in the workplace." Based on these findings, Mallory

removed Collins from his position as department chair. Mallory

also left the campus ban and the paid suspension from the COLSA

faculty in place. In addition, Mallory ordered Collins to

apologize to Sower in writing and to attend an anger-management

class. Mallory stated that the suspension and ban would continue

-6-
until Collins complied with these directives and until any criminal

and civil cases against him were resolved.

After a trial in the Durham, New Hampshire District Court

on October 23, 2007, Collins was cleared of the stalking and

disorderly conduct charges for which he was arrested on June 29.

At various times during the fall and winter of 2007, Collins was

given permission to enter the campus for specified events,

including attending his children's sporting events and helping his

daughter move into her dormitory. On January 15, 2008, Mallory

wrote a letter to Collins informing him that the suspension and ban

had been lifted and that Collins could return to campus and to his

faculty duties on January 22, 2008. However, Mallory did not

reinstate Collins to his position as department chair.

B. Procedural History

On March 9, 2009, Collins filed suit against UNH,

Mallory, and Whitten in the United States District Court for the

District of New Hampshire. Collins's Complaint contained four

counts: (1) a Fourth Amendment false arrest claim against Whitten

and UNH for the arrest on the disorderly conduct charge; (2) a

similar false arrest claim for the arrest on the stalking charge;

(3) a Fourteenth Amendment1 due process claim against Mallory and

1
The Complaint alleged a violation of Collins's due process
rights under the Fifth Amendment rather than under the Fourteenth
Amendment. Because there are no Federal defendants in this case,
a claim under the Fifth Amendment would fail. See Martínez-Rivera
v. Sánchez-Ramos, 498 F.3d 3, 8-9 (1st Cir. 2007). However, the

-7-
UNH for the campus ban, the suspension, and the loss of his

department chair position; and (4) a defamation claim. The

defendants moved for judgment on the pleadings as to the two false

arrest claims. The court granted this motion on March 15, 2010,

finding that there was probable cause for the warrant on both

charges and that the arrest was valid under New Hampshire law. See

Collins I, 2010 U.S. Dist. LEXIS 26436. Collins filed an Amended

Complaint on April 21, 2010, that contained essentially the same

allegations and counts as the original Complaint. The defendants

moved for judgment on the pleadings on the two false arrest counts

in the Amended Complaint, and the district court granted this

motion on May 5, 2010.

On October 8, 2010, the court granted summary judgment

for the defendants on the due process and defamation counts.

Collins had alleged that the defendants violated his due process

rights in three ways. First, Collins, alleged that the defendants

improperly deprived him of a property interest by suspending him

with pay without a prior hearing. However, the district court

rejected this argument, relying on this Court's holding in Torres-

Rosado v. Rotger-Sabat, 335 F.3d 1, 9-10 (1st Cir. 2003), that

public employees are not entitled to pre-suspension process if they

are suspended with pay. Collins II, 746 F. Supp. 2d at 369.

district court construed the Complaint to allege a Fourteenth
Amendment violation rather than a Fifth Amendment violation.

-8-
Second, Collins alleged that the defendants deprived him of his

liberty interest in entering the UNH campus when they imposed the

ban. However, the court held that because Collins's liberty

interest in coming to campus for work-related purposes was

indistinguishable from his interest in his job, he was not entitled

to any process before being banned. Id. at 370. In addition, to

the extent that Collins had an interest in coming to campus for

other purposes, the court held that he was not deprived of that

interest because the ban was temporary and subject to exceptions.

Id. at 370-71. Finally, Collins had argued that the defendants

improperly deprived him of a property interest by removing him from

his position as department chair. However, the court found that

Collins was accorded adequate process, including multiple meetings

with Mallory and an opportunity to submit a written statement. Id.

at 371-72.

As for the defamation count, Collins had alleged that the

statement in the email to COLSA faculty and staff that "[a]nyone

who sees Dr. Collins anywhere on campus should avoid contact with

him and immediately notify the UNH Police Department" defamed him

because it implied that he was "armed and dangerous." However, the

district court held that the statement at most implied that he was

dangerous, and that given Collins's outburst, the statement was

substantially true. Id. at 374. Furthermore, New Hampshire

recognizes a qualified privilege for untrue statements if they were

-9-
made in good faith, without malice, and with reasonable belief in

their truth. See Simpkins v. Snow, 661 A.2d 772, 776-77 (N.H.

1995). The district court found that the privilege applied.

Collins II, 746 F. Supp. 2d at 374.2

Collins now appeals the district court's rulings on all

four counts.

II. Discussion

A. Standard of Review

We review a district court's decision to grant a motion

for judgment on the pleadings applying the same standard as that

used for reviewing a grant of a motion to dismiss. See Citibank

Global Mkts., Inc. v. Santana, 573 F.3d 17, 23 (1st Cir. 2009).

Under this standard, we review the district court's decision de

novo, accepting all well-pleaded facts as true and drawing all

reasonable inferences in favor of the non-moving party. Id. To

survive a motion for judgment on the pleadings, "the complaint must

plead facts that raise a right to relief above the speculative

level, . . . such that entitlement to relief is plausible." Id.

(citation omitted).

2
Collins also claimed that the statement in the press release
that he had been placed on administrative leave was defamatory.
However, under New Hampshire law, "[a] statement is not actionable
for defamation if it is substantially true." Simpkins, 661 A.2d at
776. Thus, because this statement was a true factual assertion
that Collins had been placed on leave, the district court held that
it was not actionable. See Collins II, 746 F. Supp. 2d at 373.
Collins does not challenge this ruling on appeal.

-10-
 We also review a district court's grant of summary

judgment de novo. Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st

Cir. 2006). We must construe "the record in the light most

favorable to the nonmovant and resolv[e] all reasonable inferences

in that party's favor" while safely ignoring "conclusory

allegations, improbable inferences, and unsupported speculation."

Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (citation

and internal quotation marks omitted). In doing so, "we are not

married to the trial court's reasoning but, rather, may affirm on

any independently sufficient ground made manifest by the record."

Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir. 2011).

B. False Arrest on Disorderly Conduct Charge

Collins argues that his arrest for disorderly conduct was

an unreasonable seizure in violation of his Fourth Amendment

rights. "When there is probable cause for an arrest, the Fourth

Amendment's prohibition against unreasonable searches and seizures

is not offended." Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5,

9 (1st Cir. 2004). Collins concedes that there was probable cause

to charge him with disorderly conduct. However, he argues that it

was illegal to arrest him for disorderly conduct because New

Hampshire law does not permit such an arrest.

In New Hampshire, "[d]isorderly conduct is a misdemeanor

if the offense continues after a request by any person to desist;

otherwise, it is a violation." N.H. Rev. Stat. Ann. § 644:2(VI).

-11-
The complaint against Collins described his offense as a

"violation." Collins argues that because he was only charged with

a "violation," it was illegal for the UNH Police to arrest him.

Collins points out that under New Hampshire law, a person convicted

of a violation does not face incarceration; rather, the person "may

be sentenced to conditional or unconditional discharge, or a fine."

Id. § 651:2(III-a). Collins also argues that the New Hampshire

Criminal Code makes a distinction between "crimes" and

"violations." See id. § 625:6 ("No conduct or omission constitutes

an offense unless it is a crime or violation under this code or

another statute.") (emphasis added). Finally, Collins points to

the definition of "arrest" in the criminal code, which is "the

taking of a person into custody in order that he may be forthcoming

to answer to the commission of a crime." Id. § 594:1(I) (emphasis

added). Because the definition of "arrest" refers to a "crime,"

and because of the alleged distinction between crimes and

violations, Collins argues that his arrest was illegal. We find no

merit in Collins's argument.

In State v. Miller, the New Hampshire Supreme Court

rejected the argument that a person cannot be arrested for an

offense classified as a "violation," holding that "the use of the

word 'crime' [in § 594:1] was not intended as a word of limitation

but rather to encompass broadly all offenses prohibited by statute

or ordinance." 348 A.2d 345, 347 (N.H. 1975). Collins attempts to

-12-
distinguish Miller by arguing that disorderly conduct is a "civil

offense" rather than a "criminal offense." However, the disorderly

conduct statute, N.H. Rev. Stat. Ann. § 644:2, is part of the

Criminal Code of New Hampshire, and Collins provides no support for

the proposition that an offense defined in the Criminal Code is

somehow civil in nature.

Collins also appears to argue that the Constitution

prohibits arrest for offenses that do not involve the potential for

incarceration. However, the Supreme Court flatly rejected this

argument in Atwater v. City of Lago Vista, 532 U.S. 318, 346-348

(2001) (upholding arrest for a misdemeanor seatbelt violation

punishable only by a fine under Texas law and rejecting a rule

"forbidding custodial arrest, even upon probable cause, when

conviction could not ultimately carry any jail time").

Because there was probable cause for Collins's arrest on

the disorderly conduct charge, Collins has no plausible entitlement

to relief on his claim that the arrest violated his Fourth

Amendment rights. Therefore, we affirm the district court's grant

of judgment on the pleadings to the defendants on this count.

C. Stalking

Regarding the false arrest count on grounds of stalking,

Collins alleged that the warrant pursuant to which he was arrested

was invalid. The district court held that the warrant was valid

because it was supported by probable cause. Collins argues on

-13-
appeal that the district court had insufficient evidence before it

to conclude that the warrant was valid.

Ordinarily, "[a] magistrate's 'determination of probable

cause should be paid great deference by reviewing courts.'"

Illinois v. Gates, 462 U.S. 213, 236 (U.S. 1983) (quoting Spinelli

v. United States, 393 U.S. 410, 419 (U.S. 1969)).3 Here, however,

the record before the district court did not contain the documents

that were presented to the New Hampshire justice of the peace who

issued the arrest warrant. Thus, Collins argues, the district

court could not have conducted any review of the warrant, even the

deferential review required under Gates.

We reject Collins's argument. There is no support for

Collins's proposition that a reviewing court must examine all of

the documents presented to the court that issued a warrant in order

to determine whether the warrant was supported by probable cause.

The reviewing court's task is simply to "ensure that the magistrate

had a 'substantial basis for concluding' that probable cause

existed." Id. at 238-39 (quoting Jones v. United States, 362 U.S.

257, 271 (1960)) (alterations in quotation omitted). Here, the

district court had before it ample undisputed evidence to conclude

that the warrant was supported by probable cause.

3
Although Gates discusses probable cause in the context of a
search, we have applied Gates in cases discussing probable cause
for an arrest. See, e.g., Wilson v. City of Boston, 421 F.3d 45,
54 (1st Cir. 2005); Burke v. Town of Walpole, 405 F.3d 66, 79-80
(1st Cir. 2005).

-14-
 Probable cause exists "if 'the facts and circumstances

within [the issuing judge's] knowledge and of which they had

reasonably reliable information' would suffice to 'warrant a

prudent person believing' that a person has committed . . . a

crime." Burke, 405 F.3d at 80 (quoting Roche v. John Hancock Mut.

Life Ins. Co., 81 F.3d 249, 254 (1st Cir. 1996)). Under New

Hampshire law, stalking is defined as, inter alia, "[p]urposely,

knowingly, or recklessly engag[ing] in a course of conduct targeted

at a specific person which would cause a reasonable person to fear

for his or her personal safety or the safety of a member of that

person's immediate family, and the person is actually placed in

such fear." N.H. Rev. Stat. Ann. § 633:3-a(I)(a). "'Course of

conduct' means [two] or more acts over a period of time, however

short, which evidences a continuity of purpose," and can include

"[t]hreatening the safety of the targeted person . . . ." Id.

§ 633:3-a(II).

Collins's Complaint excerpts the criminal complaint sworn

by Officer Whitten on which the arrest warrant was based:

[T]he Defendant [Collins] did recklessly
engage in a course of conduct targeted at
Stacia Sower which would cause a reasonable
person to fear for her safety and Stacia Sower
was actually placed in such fear in that the
Defendant did in the elevator of Rudman Hall
and then twice more in the basement state that
he was, "going to kill that fucking bitch,"
referring to Stacia Sower . . . .

-15-
Thus, at the very least, the issuing court had before it Officer

Whitten's statement about Collins's conduct. This statement

provided sufficient information for a prudent person to believe

that Collins had threatened Sower's safety at least two times and

that Sower did fear for her safety, which would constitute stalking

under New Hampshire law.4 Thus, there was probable cause to issue

the arrest warrant.

Because the warrant for Collins's arrest on stalking

charges was supported by probable cause, Collins has no plausible

entitlement to relief on his invalid warrant claim. Therefore, we

affirm the district court's grant of judgment on the pleadings to

the defendants on this count.

D. Due Process

As he did below, Collins argues that Mallory and UNH

violated his due process rights in three ways. First, he argues

that the defendants improperly deprived him of a property interest

by suspending him with pay. Second, he argues that the defendants

deprived him of his liberty interest in entering the UNH campus

when they imposed the campus ban. Finally, he argues that the

defendants improperly deprived him of a property interest by

removing him from his position as department chair. We address

these arguments in turn.

4
Notably, Collins does not suggest that any of the documents
before the issuing court might have challenged the credibility of
Officer Whitten's statement.

-16-
 1. Suspension with Pay

In Cleveland Board of Education v. Loudermill, the

Supreme Court noted that the "root requirement" of the Due Process

Clause was "that an individual be given an opportunity for a

hearing before he is deprived of any significant property

interest." 470 U.S. 532, 542 (U.S. 1985) (quoting Boddie v.

Connecticut, 401 U.S. 371, 379 (1971)). Collins argues that his

suspension with pay violated his due process rights because he was

not given any sort of hearing prior to being suspended.

The district court ruled that because Collins was

suspended with pay, he was not deprived of any property interest,

and therefore was not entitled to pre-suspension process. In so

ruling, the district court relied on our opinion in Torres-Rosado,

in which we explained that "a government employer who wishes to

remove a worker immediately may suspend that worker with pay until

the procedures associated with termination can be completed." 335

F.3d at 9 (citing Loudermill, 470 U.S. at 544-45). In Torres-

Rosado, the plaintiff, an employee of the government of Puerto

Rico, was suspended with pay for insubordination without a prior

hearing and then terminated five months later. See 335 F.3d at 8.

We held that because the suspension "caused only a very temporary

deprivation of job functions and no financial loss, [it] did not

-17-
give rise to any constitutional entitlement to due process." Id.

at 10.5

We agree with the district court that Torres-Rosado

controls here. Determining what process is due requires balancing

three factors: "'[f]irst, the private interest that will be

affected by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural

safeguards; and finally, the Government's interest.'" Gilbert v.

Homar, 520 U.S. 924, 931-32 (1997) (quoting Mathews v. Eldridge,

424 U.S. 319, 335 (1976)). Here, Collins has an interest in

5
Collins argues that our statement in Torres-Rosado that a
government employer may suspend a worker with pay is based on an
improper reading of Loudermill. In Loudermill, the Supreme Court
held that prior to being terminated for cause, a public employee
must be given some opportunity to respond to charges. 470 U.S. at
547-48. The Court stated in dicta that "in those situations where
the employer perceives a significant hazard in keeping the employee
on the job, it can avoid the [due process] problem by suspending
with pay." Id. at 544-45 (emphasis added). Relying on this dicta,
Collins argues that UNH was required to find that he was a
"significant hazard" in order to suspend him without first giving
him process. Collins contends that he was denied due process
because UNH did not consider whether he was a "significant hazard"
before suspending him. He further argues that UNH could not have
found him to be a hazard given that many faculty members stated
that they did not think he was dangerous.

Collins reads too much into the above-quoted sentence from
Loudermill. We do not read the Court's language to be stating that
a finding of hazardousness is a prerequisite to suspending an
employee with pay. Rather, we interpret the Court's language as
simply noting two uncontested points: (1) that a government
employer has the general authority to impose a paid suspension
without a prior hearing; and (2) that the employer can exercise
this authority if it perceives an employee to be hazardous.

-18-
receiving his pay, but that interest was minimally affected, if at

all: there was only a "very temporary deprivation of job functions

and no financial loss." Torres-Rosado, 335 F.3d at 10. Therefore,

there was no "deprivation" of any interest that would entitle

Collins to any process prior to suspension.6

We did suggest in Torres-Rosado that "a very long or

open-ended paid suspension might function so much like a

termination that some due process protection might attach." 335

F.3d at 10 n.8. However, as in Torres-Rosado, "[w]e need not

consider that prospect here." Id. The initial suspension with pay

went into effect on June 29, 2007. Collins was then given multiple

opportunities to be heard orally and in writing. Finally, on

September 10, 2007, Mallory decided that Collins's behavior

warranted continued suspension until Collins fulfilled certain

requirements. Thus, Collins was only subject to suspension without

process (as opposed to suspension with process) for approximately

two months. This is shorter than the five-month suspension in

Torres-Rosado, which we found to be too short to raise due process

6
In Gilbert, the Supreme Court applied this test and unanimously
rejected a due process challenge to a university's decision to
immediately suspend a police officer without pay after the officer
was arrested on drug charges. See 520 U.S. at 934. Here, the
balance of the Mathews factors weighs at least as strongly in favor
of the government, if not more so. Unlike in Gilbert, the
suspension here was with pay; thus, there was minimal harm to
Collins's interest. In contrast, UNH had a strong interest in
maintaining order and decorum on campus, an interest that Collins
clearly disturbed.

-19-
concerns. We thus agree with the district court that Collins was

not entitled to pre-suspension process.7

2. Ban from Campus

The district court found that Collins's liberty interest

in "tending to his campus laboratory [and] mentoring his graduate

students" was co-extensive with his property interest in his

position, and thus held that Collins was not entitled to pre-ban

process. Collins does not challenge this conclusion on appeal.

However, the court also found that to the extent Collins had a

liberty interest in coming to the campus for non-work purposes, he

was not deprived of it because the ban was (1) "temporary and

lifted by the University after its investigation" and (2) "subject

to exceptions for plaintiff's 'legitimate needs.'" Collins

challenges the district court's characterization of the ban, noting

that (1) the ban remained in place until January of 2008, whereas

UNH's investigation concluded in September of 2007; and (2) he was

denied entry onto the campus on November 16, 2007 to attend a

seminar given by his graduate student.

The record shows that Collins was given permission to

enter the campus at least nine times during his suspension, whereas

Collins can identify only one occasion in which permission was

7
Our result is consistent with "[n]umerous courts [that] have
held that paid suspensions could be imposed without the sorts of
procedures the Constitution demands for terminations of career
employees who have proprietary interests in their jobs."
Torres-Rosado, 335 F.3d at 10 n.8 (collecting cases).

-20-
denied. A single denial of permission is not a deprivation

sufficient to give rise to any right to a pre-ban process.8

Moreover, even assuming arguendo that Collins was

deprived of some liberty interest, the record shows that UNH gave

him adequate process. Mallory initially banned Collins on June 29,

2007, the day after the incident. Given Collins's behavior and

UNH's strong interest in order and safety, Collins had no right to

notice or a hearing prior to the initial ban. Mallory confirmed

the ban on September 10, 2007, after the University's investigation

and after Collins had been given multiple opportunities to be heard

in writing and in person. Thus, Collins was given adequate process

before the longer-term ban went into effect.

3. Loss of Department Chair Position

Collins claims that the University did not give him

adequate notice of the charges against him or of the possibility

that he could lose his department chair position before permanently

stripping him of the position. Collins points to our decision in

Cotnoir v. University of Maine Systems, in which we held that if a

government employee faces loss of a protected interest, the

employee must be given "notice of both charges against an

employee[] and the proposed action based on those charges . . . ."

8
Furthermore, the single event Collins was prevented from
attending was an academic event. Thus, his liberty interest in
attending this event was arguably co-extensive with his property
interest in his position. As discussed supra, the deprivation of
this interest did not violate Collins's due process rights.

-21-
35 F.3d 6, 11 (1st Cir. 1994) (citing Loudermill, 470 U.S. at 543-

46).

The record clearly shows that Collins had notice of both

the charges against him and the possible sanctions. UNH sent a

letter to Collins on June 29, 2007 informing him that he was being

suspended from his "duties as associate professor and department

chair of Biochemistry and Molecular Biology" pending review of "the

circumstances surrounding [his] arrest on criminal charges relating

to behavior alleged to have occurred on campus." Moreover, the

letter said that the University would "determine what, if any,

further response may be warranted." Therefore, Collins was clearly

on notice that he was subject to sanction for his outburst on

June 28, 2007. Moreover, while the letter does not explicitly

state that Collins could lose his position as department chair

permanently, the reference to "further action," coupled with the

initial suspension of his department chair position, placed Collins

on notice that a permanent loss of that position was possible. Cf.

O'Neill v. Baker, 210 F.3d 41, 49 (1st Cir. 2000) (stating that in

context of termination for poor performance, "there is no specific

due process requirement that an individual know, prior to a

contemplated action hearing, precisely what action is contemplated

where there has been prior notice that termination could result if

there were no improvement").

-22-
E. Defamation

Collins argues that in granting summary judgment to the

defendants on the defamation claim, the district court wrongly

decided fact questions that should have been left to the jury.

"[W]e must reverse [a grant of summary judgment] if we find that

plaintiffs have established a genuine issue of material fact that

a reasonable jury could resolve in their favor." Coffin v.

Bowater, Inc., 501 F.3d 80, 97 (1st Cir. 2007) (emphasis added).

We find that no reasonable jury could have found for Collins on his

defamation claim.

Under New Hampshire law, defamation requires proof that

the defendant "failed to exercise reasonable care in publishing,

without a valid privilege, a false and defamatory statement of fact

about the plaintiff to a third party." Indep. Mech. Contractors,

Inc. v. Gordon T. Burke & Sons, Inc., 635 A.2d 487, 492 (N.H. 1993)

(emphasis added). "[W]ords alleged to be defamatory must be read

in the context of the publication taken as a whole." Duchesnaye v.

Munro Enters., Inc., 480 A.2d 123, 125 (N.H. 1984). "A statement

is not actionable if it is substantially true." Simpkins, 661 A.2d

at 776. Moreover, even if a statement is false, a qualified

privilege exists if it was "published on a lawful occasion, in good

faith, for a justifiable purpose, and with a belief, founded on

reasonable grounds of its truth, provided that the statement[] [is]

-23-
not made with actual malice." Id. at 777 (internal quotation mark

omitted).

Collins contends that the statement, "[a]nyone who sees

Dr. Collins anywhere on campus should avoid contact with him and

immediately notify the UNH Police Department," defamed him because

it implied he was "armed and dangerous." This statement appeared

in an email to COLSA faculty and staff informing them of Collins's

arrest and ban from campus. The email also included a press

release stating that Collins had voluntarily turned himself in on

the arrest warrant and had been released on $2,500 bail. Thus, no

reasonable juror, reading the challenged statement in the context

of the email as a whole, could have interpreted it to mean that

Collins was "armed and dangerous."

At most, as the district court found, the statement might

have implied that Collins was dangerous. Yet even assuming that

the email implied Collins was dangerous, and assuming this

implication was false, the defendants were clearly privileged in

making the statement. The email was sent on a lawful occasion, and

the record shows that UNH officials made a good-faith decision to

proactively publicize the incident. Given that Collins had been

banned from campus for an incident involving violence against

property and a threat of violence against another person, UNH had

a justifiable purpose in instructing anyone who saw him to avoid

him and inform the police. Finally, given Collins's behavior, the

-24-
University had a reasonable ground for believing Collins could be

dangerous.9 Moreover, there is no evidence in the record that the

defendants acted with malice. Thus, no reasonable jury could have

found that the privilege did not apply, and hence summary judgment

was proper.10

III. Conclusion

The judgment of the district court is affirmed.

Affirmed.

9
Collins accuses UNH of "administrative hysteria" for viewing him
as a potential danger, and notes that on the morning of June 29,
2007, before Mallory had the email sent, Cote and Manello met with
Mallory to say that Collins was not dangerous. However, given that
Collins kicked a trash can and publicly said he could kill a
colleague over a parking ticket, we find Collins's protest
unpersuasive. It is also important to recall that this incident
occurred just months after the shooting at Virginia Tech, which, as
the record reflects, put UNH officials on heightened alert for
campus violence.
10
Collins's contention that the question of qualified privilege
must always be left to a jury at trial is flatly wrong.
Ordinarily, the question of whether the privilege applies is a
question of fact. See Pickering v. Frink, 461 A.2d 117, 119 (N.H.
1983) (citing McGranahan v. Dahar, 408 A.2d 121, 123 (N.H. 1979)).
However, the purpose of summary judgment is "to pierce the
boilerplate of the pleadings and assay the parties' proof in order
to determine whether trial is actually required." McCarthy v. Nw.
Airlines, Inc., 56 F.3d 313, 314 (1st Cir. 1995). Where, as here,
no reasonable jury could have found that the privilege did not
apply, a trial is not necessary.

-25-