Gorelik v. Costin, Pa-C

United States Court of Appeals
For the First Circuit

No. 09-1192

LYUBOV Y. GORELIK, M.D.,

Plaintiff, Appellant,

v.

KEVIN R. COSTIN, PA-C, President,
NH State Board of Medicine,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.

Richard F. Johnston on brief for appellant.
Suzanne M. Gorman and Kelly A. Ayotte on brief for appellee.

May 20, 2010
 STAHL, Circuit Judge. Dr. Lyubov Gorelik ("Gorelik")

appeals from the dismissal of her five-count complaint against

Defendant-Appellee Kevin Costin ("Defendant") in his official

capacity as president of the New Hampshire State Board of Medicine.

Counts I through IV of Gorelik's complaint assert that Defendant

violated her due process and equal protection rights under 42

U.S.C. § 1983 and the Fourteenth Amendment. All four of these

counts were dismissed as untimely. Count V, a claim for

retaliation under Section 1983 and the First and Fourteenth

Amendments, was dismissed on the basis of it being too speculative.

After a careful review of the record, we affirm in all respects.

I. Facts and Background

In 1997 Gorelik applied for and was accepted to a

residency program in psychiatry at Dartmouth Hitchcock Medical

Center ("DHMC") scheduled to begin in July of that year. In June,

in connection with that program, Gorelik applied for a resident

training license to practice medicine in New Hampshire through the

New Hampshire State Board of Medicine (the "Board"). Following

that application, on July 3, 1997, the Board issued Gorelik a

temporary ninety-day training license through an Order of

Conditional Approval ("Order") pending completion of her appeal of

her dismissal from a previous training program in the State of New

York. After several extensions, her temporary license expired on

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April 15, 1998. On June 10, 1998, Gorelik's request to renew that

license was denied by the Board.

Meanwhile, in August 1997, a newsletter published by the

Board listed the Order granting Gorelik her temporary license under

the heading "Disciplinary Actions." Among the "final disciplinary

actions" listed in the newsletter was Gorelik's "Order of

Conditional Approval -- Temporary training license granted during

appeal of dismissal from a prior training program." This

newsletter was available on the Board's website. Some time in

2002, Gorelik became aware of the newsletter and its availability

on the Board's website.

Gorelik asserts that the newsletter continued to be

available on the Board's website through the filing of this action,

and that it continued to list the Order as a disciplinary action.

Gorelik argues that the listing of the Order under the heading of

"Disciplinary Actions" was a mischaracterization. She further

contends that an internet search of her name will generate hits

referring to the mischaracterization and that because "[t]his

mischaracterization improperly implies wrongdoing on [her] part .

. . [it] is harmful to her professional reputation." Finally,

Gorelik argues that had she known that the Order would be published

as a disciplinary action, she would not have accepted the temporary

license from the Board.

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 On February 5, 2004, Gorelik petitioned the Board for a

hearing to have the information pertaining to the Order removed

from the Board's website and to change the characterization of the

temporary license as a disciplinary action. On June 7, 2004, the

Board issued an order in response to Gorelik's petition. The order

granted Gorelik's request to remove any characterization of the

Order issuing her temporary license as a disciplinary action from

its records, including from the newsletter posted on the Board's

website. The order also granted Gorelik's request to withhold from

publication the Board's response to her petition in the Board's

newsletter or on its website so as to avoid further harm to

Gorelik's reputation. However, the Board denied Gorelik's request

to remove all references to the Order issuing her temporary license

from its website and further determined that the June 7, 2004 order

itself would be a public record, though the Board would not

affirmatively publicize it. Finally, the order provided that it

would become final within thirty days unless Gorelik requested in

writing that the Board hold a hearing. The record is silent as to

whether any such request was made, though Gorelik states in an

affidavit that a hearing was scheduled for April 6, 2005.

Though Gorelik argues otherwise, the district court found

that in 2004 the Board did indeed change the language of the

internet version of the 1997 newsletter to reflect that the

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issuance of Gorelik's temporary license was a "board action" and

not a disciplinary action.

Gorelik also claims that on or about March 22, 2005, at

a prehearing conference,1 her counsel was advised by the Board's

Presiding Officer and attorney, Judy Dickinson, that if Gorelik

continued to pursue the petition, it would "necessarily require"

Dickinson to disclose to the Board information pertaining to

Gorelik's DHMC residency and the 1998 denial of her application to

renew her temporary license. Gorelik's counsel then advised her

that further pursuit of a hearing would likely lead the Board to

post information about the denial of Gorelik's renewal application

to its website. Thereafter, Gorelik, in April 2005, withdrew her

petition in order to avoid further disclosure. Her complaint was

filed on February 5, 2008, almost three years later.

To reiterate, in Counts I through IV, Gorelik alleged

violations under 42 U.S.C. § 1983 and the Fourteenth Amendment,

arguing that the Defendant violated her due process and equal

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

temporary license as issued would be characterized as a

disciplinary action and posted on the Board's website as such; (2)

characterizing the issuance of her temporary license as a

disciplinary action although it is not generally characterized as

1
The record is silent as to the genesis of this prehearing
conference and how it came about.

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such for others; (3) failing to provide notice and an opportunity

to be heard prior to treating the license as a disciplinary action;

and (4) failing to provide notice and an opportunity to refuse

acceptance of the temporary license because of the

mischaracterization of it as a disciplinary action. In Count V,

she asserted that the defendant violated her First and Fourteenth

Amendment rights by threatening to retaliate against her (in the

form of public disclosure) for petitioning the Board for relief.

Gorelik sought declaratory and injunctive relief, attorney's fees,

and costs.

The Defendant filed a motion to dismiss under Fed. R.

Civ. P. 12(b)(6) arguing, inter alia, that the applicable statute

of limitations had expired and that Gorelik failed to state a claim

on which relief could be granted. The district court dismissed the

claims solely on the grounds that Counts I through IV were time-

barred and Count V was too speculative and also noted that the

parties should not infer that other grounds for dismissal were

without merit.

On this appeal, Gorelik raises two issues. First, she

argues that under the "continuing violation" doctrine, Counts I

through IV should not have been dismissed as time-barred, and

second, that Count V should not have been dismissed because it was

properly pled.

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 II. Discussion

We consider first her claim that, as to Counts I through

IV of her complaint, the continuing violation doctrine was

sufficient to bring those counts within the applicable limitations

period.

We review de novo a district court order granting a

motion to dismiss under Rule 12(b)(6), "tak[ing] the well-pleaded

facts in the light most favorable to the plaintiff and indulg[ing]

[her] all reasonable inferences." Gagliardi v. Sullivan, 513 F.3d

301, 305 (1st Cir. 2008). While a complaint does not need

"detailed factual allegations" to survive a motion to dismiss, a

plaintiff's factual allegations "must be enough to raise a right to

relief above the speculative level." Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). Where, as here, dismissal is premised on

the running of a statute of limitations, we will affirm when the

pleader's allegations "leave no doubt that an asserted claim is

time-barred." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,

509 (1st Cir. 1998); accord Edes v. Verizon Commc'ns, Inc., 417

F.3d 133, 137 (1st Cir. 2005).

As 42 U.S.C. § 1983 does not include a limitations

period, courts have held that the relevant limitations period is

that which governs general personal injury claims in the state

where the claim arose. See Gilbert v. City of Cambridge, 932 F.2d

51, 57 (1st Cir. 1991) (citing Owens v. Okure, 488 U.S. 235, 249-50

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(1989)). Here, the applicable New Hampshire statute of limitations

is three years. See N.H. Rev. Stat. Ann. § 508:4 (1997). It is

federal law, however, that determines when the statute of

limitations begins to run. Morán Vega v. Cruz Burgos, 537 F.3d 14,

20 (1st Cir. 2008). "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." Id. (internal quotations and

citations omitted).

In this case, the issuance of Gorelik's temporary license

and the posting of the newsletter labeling it a "disciplinary

action," which are the subject of Gorelik's first four counts,

occurred in 1997, approximately eleven years before Gorelik filed

her complaint, and well outside the limitations period. Even if we

were to find that those claims accrued in 2002, when Gorelik

alleges that she first learned of the newsletter, the allegations

would still be outside the limitations period.

Gorelik argues that her action is nonetheless timely

under the continuing violation doctrine.

Under this doctrine, a plaintiff can recover for injuries
that occurred outside the statute of limitations under
certain narrow conditions. Although the name of the
doctrine may sound auspicious for late-filing plaintiffs,
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

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 be delayed until a series of wrongful acts blossoms into
an injury on which suit can be brought."

Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir.

2008) (quoting Morales-Tañon v. Puerto Rico Elec. Power Auth., 524

F.3d 15, 18-19 (1st Cir. 2008)).2

As the Supreme Court held in National Railroad Passenger

Corporation v. Morgan, 536 U.S. 101 (2002), a case involving a

continuing violation claim under Title VII, "discrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges." Id. at

113. As the Court reasoned, "[d]iscrete acts such as termination,

failure to promote, denial of transfer, or refusal to hire are easy

to identify. Each incident of discrimination and each retaliatory

adverse employment decision constitutes a separate actionable

'unlawful employment practice.'" Id. at 114. Consequently,

discrete discriminatory acts which occur outside the limitations

period are time-barred and no longer actionable. Id. at 115.

Thus, the discrete 1997 Board actions which Gorelik

alleges caused her harm are untimely pled. Even if we took the

date of accrual to be 2002, when Gorelik discovered the newsletter

2
We note, as did the district court, that we assume without
deciding that the continuing violation doctrine is applicable to
tort actions in New Hampshire. See Gorelik v. Costin, No. 08-cv-
036-JL, 2008 WL 5448220, at *4 n.12 (D.N.H. Dec. 31, 2008) (citing
Singer Asset Finance Co., LLC v. Wyner, 937 A.2d 303, 312-13 (N.H.
2007), as indicative of the New Hampshire Supreme Court's
willingness to consider the doctrine's applicability in tort).

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posted on the Board's website, the filing of her complaint in 2008

would still be untimely.

Gorelik asserts that the Board routinely updates and

maintains its website, thereby "republishing" the newsletter

characterizing the issuance of her temporary training license as a

disciplinary action. According to Gorelik, "[e]ach update is a

continued and unlawful act rendering the continuing violation

doctrine applicable to this case." We do not accept the

"republication" concept, given the fact that the issuance of

Gorelik's temporary license and its posting in a newsletter on the

Board's website were discrete acts. Consequently, the continuing

violation doctrine does not apply to this case, and the timeliness

of Gorelik's claim turns on whether an actionable violation of her

First or Fourteenth Amendment rights occurred during the

limitations period. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d

121, 130-31 (1st Cir. 2009) (finding that the continuing violation

doctrine did not apply to plaintiff's time-barred claim challenging

employer's denial of request for accommodation under the ADA, on

the ground that such a denial is a "discrete discriminatory act

that . . . does not require repeated conduct to establish an

actionable claim.").

As a preliminary matter, even though Gorelik maintains in

her complaint and appellate brief that the issuance of her

temporary license continued to be labeled a disciplinary action on

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the Board's website until the filing of this action, the district

court found that the Board relabeled the issuance of the license as

a "board action" some time in 2004, and Gorelik has presented no

actual evidence contrary to the court's finding.

But even assuming that the 1997 newsletter accessible on

the Board's website continued to classify the issuance of Gorelik's

temporary license as a disciplinary action until a date within the

limitations period, the mere fact that the newsletter was

accessible on an updated website does not constitute an

"independently discriminatory" act that would itself entitle

Gorelik to relief, Morgan, 536 U.S. at 113. The Board actions

which Gorelik alleges caused her harm were taken in 1997. As the

district court correctly reasoned, "[t]he fact that records of the

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

does not constitute a continuing tort, but rather the continuing

effects of an alleged harm." Gorelik, 2008 WL 5448220, at *4. As

we have noted, "it is imperative that we distinguish between the

occurrence of a discriminatory act and the later effects of that

act." Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 182

(1st Cir. 1989).

Gorelik argues that the Board "routinely maintains and

updates its website thereby continuing [sic] republishing the

material," but the only changes which the Board appears to have

made to the newsletter in question were in Gorelik's favor,

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reclassifying the issuance of her license as a "board action."

Otherwise, the Board's more general updating of its website does

not constitute a separate wrong sufficient to form the basis of

Gorelik's claim. Rather, the newsletter's continued accessibility

on the Board's updated website is more appropriately characterized

as a continued effect of the Board's 1997 acts, which are

themselves outside the limitations period.

Gorelik's final argument, that the alleged threat of

retaliation committed by the Board in March 2005 was a "separate

and discrete unlawful act" which would serve as the basis for her

claim, also fails. We conclude, as did the district court, that

this claim, asserted in Count V, is too speculative to entitle

Gorelik to relief. See Bell Atl. Corp., 550 U.S. at 555.

In order to succeed on a First Amendment retaliation

claim, a party must show that her conduct "was constitutionally

protected, and that this conduct was 'a substantial factor [or] .

. . a motivating factor' driving the allegedly retaliatory

decision." Centro Medico del Turabo, Inc. v. Feliciano de Melecio,

406 F.3d 1, 10 (1st Cir. 2005) (quoting Mt. Healthy City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Even drawing all

reasonable inferences in Gorelik's favor, we find that she has

failed to identify any retaliatory decision or action by the Board

in response to her attempts to avail herself of administrative

remedies.

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 Gorelik's allegations of retaliation are entirely founded

on a March 23, 2005, letter which she received from her then-

counsel, Cinde Warmington. In that letter, Warmington informed

Gorelik that the Presiding Officer, Judy Dickinson, at a pre-

hearing conference had

received authorization [from the Board] to attempt to
negotiate settlement language. Subsequent to that Board
meeting, Attorney Dickinson discovered the information in
your [Gorelik's] file regarding the DHMC residency
program and the denial of your later renewal application.
Although she is willing to continue negotiating
settlement language which she could present to the Board,
any further presentation to the Board would necessarily
require her to disclose the information about the DHMC
residency and the renewal application denial.

This statement did not amount to a threat of retaliatory action.

Rather, Attorney Dickinson was, at most, stating that she would

have to inform her Board colleagues of new information that she had

learned about Gorelik. And, in fact, it is not clear from the

language of the letter that Dickinson did even that much. The

language could just as easily be read to convey Attorney

Warmington's concerns that any further presentation by Dickinson to

the Board would require Dickinson to disclose certain information,

rather than Dickinson's "threat" to do as much.

The remaining statements in the letter which Gorelik

characterizes as a "threatened retaliatory act" are merely Attorney

Warmington's suppositions about the possible outcomes and risks

attending Gorelik's continued pursuit of her administrative

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remedies. This does not constitute retaliation by the Board,

threatened or otherwise.

Thus, we affirm the district court's dismissal of Gorelik's

complaint.

Affirmed.

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