McMenamon v. NH Department of Health and Human Services, Commissioner et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. McMenamon II 1
v. 	Case No. 21-cv-479-PB
New Hampshire Dep’t of Health
and Human Services Commissioner
Lori Shibenette et al. 2
REPORT AND RECOMMENDATION
Richard A. McMenamon, proceeding in forma pauperis and
without an attorney, has filed an Amended Complaint (Doc. No.
6), seeking injunctive and monetary relief, for purported
failures by state authorities to investigate and enforce federal
and state child protection laws. 	He also seeks damages from
1 McMenamon does not include his children as plaintiffs in
the caption of this case, but identifies them as parties to this
case in the complaint narrative. 	Doc. No. 1, at 3-4 ¶¶14-15.
As a self-represented non-attorney, McMenamon may not litigate
claims on behalf of anyone but himself, including his minor
children. 	See 28 U.S.C. § 1654; LR 83.2(d) (“Persons who are
not members of the bar . . . will be allowed to appear before
this court only on their own behalf.”). 	Accordingly, the Court
has construed this action as having been brought by the
plaintiff on his own behalf, asserting only rights accruing to
him personally.
2 McMenamon names the following persons as defendants:
N.H. Department of Health and Human Services (“DHHS”)
Commissioner Lori Shibenette (in her official capacity),
Division for Children, Youth, and Families (“DCYF”) Director
Joseph Ribsam (in his official capacity), and DHHS employee
Eileen Rispoli a/k/a/ Eileen Lofton Rispoli. 	As discussed
below, the Court liberally construes McMenamon’s complaint as
also asserting claims against Shibenette and Ribsam in their
individual capacities.
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Eileen Rispoli — the mother of his children and an employee of
the N.H. Department of Health and Human Services (“DHHS”) – for
intentional and negligent infliction of emotional distress. 	His
amended complaint (Doc. No. 5-1) is before the court for
preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and
LR 4.3(d)(2).
Preliminary Review Standard
The court reviews cases filed by plaintiffs proceeding
without an attorney to determine, among other things, whether
the court lacks subject matter jurisdiction and whether the
complaint fails to state a claim. 	See 28 U.S.C. § 1915(e)(2);
LR 4.3(d)(2). 	In determining whether a pro se plaintiff has
stated a claim that is plausible on its face, the court
construes the allegations in the complaint liberally, takes as
true all well-pled factual allegations, and construes all
reasonable inferences in the plaintiff’s favor. 	Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 102–03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 	The court may
dismiss a pro se litigant’s claims on its own accord if it lacks
jurisdiction, a defendant is immune from the relief sought, the
action is malicious or frivolous, or the complaint fails to
state a claim upon which relief may be granted. 	See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2)(A).
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Background
The following draws from McMenamon’s filings, restating the
pertinent non-conclusory factual allegations in his complaint
and the submitted documents referenced therein. 	See Gilbert v.
City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019).
A. 	Alleged neglect, violence, and abuse of minor children
Richard McMenamon is the father of two minor children, M.M.
(born in 2013) and V.M. (born in 2016), over whom he shares
joint custody with Rispoli. 	Am. Compl. (Doc. No. 5-1, ¶¶ 13-
15). 	In 2012, Rispoli moved into McMenamon’s home in Gilmanton
Iron Works, New Hampshire, and resided there with McMenamon,
M.M., and V.M. until the end of her and McMenamon’s relationship
in June 2019. 	Id. ¶¶ 18, 20, 38.
McMenamon alleges that, beginning in 2014, he began to
notice a pattern of neglect, abuse, and violence towards his
children when they were in Rispoli’s care. 	Id. 	In 2014, for
example, he allegedly took an infant M.M. to his primary care
physician after finding M.M. to be lethargic and unresponsive
when McMenamon returned from work. 	Id. 	McMenamon asserts that,
after extensive “Brain Scan” testing, M.M.’s primary care
physician found that M.M. was being underfed. 	Id. 	McMenamon
also claims that, in 2016, after V.M. was born, Rispoli became
violent with V.M. and separately attacked M.M., leaving him with
“gouge marks” and “red marks” on his face and neck. 	Id. ¶ 22.
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After each of these incidents, McMenamon allegedly “curbed his
work schedule” to protect M.M. and V.M. and to “limit[]”
Rispoli’s time alone with them. 	Id.
McMenamon alleges that, in response to what he viewed as
Rispoli’s increasingly dangerous, despondent, and abusive
behavior, he reported Rispoli to several professionals,
including a mental health therapist, Rispoli’s clinical
psychologist, and an urgent care doctor, but received no help.
Id. ¶¶ 23-27. 	Additionally, he made reports of child abuse to
the DHHS Division for Children, Youth and Families (“DCYF”), and
the Gilmanton, New Hampshire police, neither of which found
McMenamon’s reports to be substantiable. 	Id. ¶¶ 27-28.
In June 2019, DHHS (Family Services) hired Rispoli as an
employee. 	Id. ¶ 29. 	At around this time, Rispoli’s daughter
from her previous marriage moved into McMenamon and Rispoli’s
home, over McMenamon’s objections, to care for the children
while Rispoli worked. 	Id. ¶ 30. 	Thereafter, McMenamon reported
Rispoli’s daughter to DCYF for picking M.M. up and throwing him
“head-first into a wooden framed sofa” – the “same type” of
“assault” that McMenamon had allegedly witnessed numerous times
by Rispoli. 	Id. ¶ 30. 	McMenamon alleges that he received no
help and was instead threatened by DCYF that he himself could be
“charged” if he gave Rispoli’s daughter further access to the
children and they suffered serious injury in Rispoli’s
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daughter’s care. 	Id. 	He further asserts that, in June 2019, he
stopped all employment to care for and protect his children
while Rispoli worked full-time at DHHS. 	Id. ¶ 31.
McMenamon additionally claims that, from early 2019 until
April 2021, Rispoli engaged in what he views to be inappropriate
masturbatory conduct while breastfeeding V.M., who was three to
four-years old at the time. 	Id. ¶ 32. 	McMenamon allegedly
reported the “inappropriate sexual relationship” to the New
Hampshire State Police, the Gilmanton Police, and DCYF, but none
of these entities ultimately intervened. 	Id. 	Also in 2019,
McMenamon also allegedly reported Rispoli to the Gilmanton
Police and DCYF for threatening him and “throwing knives inside
their residence within striking distance of the children.” 	Id.
¶ 34. 	McMenamon alleges that the Gilmanton Police informed him
that he could be arrested and removed from the property if he
physically attempted to stop Rispoli. 	Id. ¶ 36. 	Additionally,
he states that Gilmanton Police warned him that he could be
charged with “wiretapping” if he “audibly recorded . . . Rispoli
engaging in a [purported] sexual act with V.M.” 	Id. ¶ 36.
McMenamon claims that the alleged abuse described above has
persisted after Rispoli moved into a separate home in June 2019
because Rispoli “has an entirely unsupervised weekly custody
time with M.M. and V.M.” 	Id. ¶ 38. 	He reveals later in his
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complaint that his and Rispoli’s relationship is the subject of
an ongoing custody proceeding. 	Id. ¶ 46.
B. 	Denied DDHS, SNAP, and Medicaid Benefits
McMenamon claims that, unbeknownst to him, on or about
August 2019, DHHS designated him as a “non-parental unit,” which
he asserts is a “term designated for a parent who has given
their children up.” 	Id. ¶ 39. 	McMenamon alleges that, as a
result of this designation, he was denied access to all federal
programs for which his children were entitled, including
Medicaid, nearly $500 each month from the Supplemental Nutrition
Assistance Program (“SNAP”), and free school meals and milk
through other federal programs. 	Id. ¶ 39. 	Additionally, he
states that he was not authorized to speak to his children’s
physicians, nurses, or billing personnel, and had no access to
prescription coverage for his children’s medical needs. 	Id.
McMenamon alleges that, during this period, he was continually
billed for medical visits and prescription medications for his
children and paid for his children’s breakfast and lunch meals
out of pocket. 	Id. 	He further claims that his own Medicaid
insurance was cancelled for some period, he was unable to pay
medical bills, and that medical providers sent their unpaid
bills out for collection, adversely affecting his credit.
McMenamon additionally alleges that, from about September
2019 to September 2020, DHHS and DCYF’s records falsely recorded
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Rispoli as the primary caregiver and only parent for M.M. and
V.M., and incorrectly listed that the children were only living
with Rispoli. 	Id. ¶ 40. 	McMenamon states that, during this
time, he put aside his work as an independent contractor to care
for his children full time and that the children primarily lived
with him. 	Id. 	He further claims that, during this same period,
Rispoli received monthly food benefits under SNAP, which she
used for her own benefit, as well as Medicaid benefits, even
though she was employed full time by DHHS. 	Id.
McMenamon claims that he was not provided statutorily
required notice that his rights as the primary caregiving parent
had been terminated, and that DHHS did not provide him with a
statutorily required hearing before depriving him of those
rights. 	Id. ¶ 56. 	Although McMenamon concedes that his federal
benefits have since been restored by DHHS, he contends that DHHS
did so as part of a cover up of what McMenamon alleges was
Medicaid fraud and violations of his due process rights. 	Id.
¶ 57. 	Additionally, he reports that his appeal to DHHS “had
been withdrawn” even though he did not withdraw that appeal and
no hearing has taken place. 	Id.
McMenamon “alleges on information and belief” that other
DHHS and DCFY employees assisted Rispoli in this purported
Medicaid fraud. 	Id. ¶ 41. 	Additionally, he alleges that
Rispoli “masterminded” the falsification of records in concert
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with other DHHS officials. 	Id. ¶ 59. 	To support these
allegations, McMenamon claims that, in 2020, an unnamed DHHS
(Family Services) supervisor told him that altered legal
documents, signed and submitted by McMenamon, declared that his
children were living with Rispoli, and that this forged document
was the basis for the “Non-Parental Unit” designation and
McMenamon’s loss of benefits. 3 	Id. ¶ 55. 	McMenamon further
alleges that a DHHS supervisor informed him that Rispoli could
not have altered the document on her own. 	Id. ¶ 56. 	McMenamon
maintains that DHHS has done nothing to Rispoli or any DHHS
employee in the face of the alleged misconduct summarized
herein. 	Id.
C. 	Alleged Deliberate Indifference by New Hampshire State
Entities to Reports of Abuse
McMenamon claims that DHHS and DCYF have created a hostile
environment for the reporting of suspected or actual cases of
child abuse, and have exhibited a state-wide deliberate
indifference to such reports. 	With regard to this case, he
alleges that DHHS and DCYF threatened him with the loss of
custody of his children, or criminal charges, if McMenamon
3 McMenamon claims that a true and correct copy of the
purportedly forged document is attached to his Amended Complaint
as Exhibit A. 	Id. ¶ 55. 	No such document, however, is included
among McMenamon’s exhibits. 	On June 17, 2021, the court issued
an endorsed order granting McMenamon leave to submit any missing
exhibits before the court completed its preliminary review.
While McMenamon filed renumbered exhibits, these exhibits do not
include any new documents bolstering his fraud allegations.
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reports any further incidents of alleged abuse. 	Id. ¶ 48.
McMenamon alleges that, in doing so, the DHHS, DCYF, and the
defendants in particular, are abusing their official positions
and are affirmatively creating a danger to children in New
Hampshire, including M.M. and V.M. 	Id. 	He asserts that the
defendants, acting under the color of state law, are depriving
him of his right to report the suspected child abuse of his
children and to have those reports investigated and documented
in accordance with federal and state law. Id. 	He alleges that
out of the many reports of child abuse he has made to “Mandatory
Reporters” in the State of New Hampshire, only two were
submitted to DCYF. 4 	Id. ¶ 53.
Beyond his personal circumstances, McMenamon broadly
asserts, without any citation to official documents or reports,
that DHHS and DCYF, in conjunction with the state family courts,
have historically facilitated “murder and horrific sexual
violence upon” minors. 	Id. ¶ 61. 	He accuses DCYF of
sanctioning, by inaction, the “‘contemptuous application’ of the
corporal punishment law in New Hampshire” against minors by
designating acts which McMenamon views as “physical attacks upon
4 In his complaint, McMenamon also includes a “partial list
of individuals who are ‘MANDATORY REPORTERS . . . who became
aware of facts and circumstances indicating actual or suspected
child abuse [of] M.M. and V.M., but failed to report under the
law because of the deliberate indifference by state agencies
responsible for investigating and preventing child abuse.” 	Id.
¶ 49.
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children” as permissible “discipline,” “punishment[],” or
“parenting.” 	Id. ¶¶ 62, 66. 	He further critiques DCYF and the
Gilmanton Police’s definition of what constitutes “sexual
relations” with a minor or “sexual abuse” on a minor, which are
incongruent with McMenamon’s personal beliefs and his
interpretation of how those terms are defined and construed
under state and federal law.
D. 	McMenamon’s claims
In his complaint, McMenamon asserts four causes of action.
The court liberally construes his allegations as attempting to
assert the following claims:
1. 	The defendants conspired to commit Medicaid fraud and to
deprive McMenamon of Medicaid and federal food assistance
without statutorily required due process, in violation of
his federal constitutional and statutory rights, by:
a. 	Forging a document identifying McMenamon as a “non-
parental unit”;
b. 	Depriving McMenamon of notice and an opportunity to be
heard prior to the termination of his Medicaid
benefits;
c. 	Depriving McMenamon of notice and an opportunity to be
heard prior to the termination of his food assistance
benefits; and
d. 	Depriving McMenamon of his right to appeal adverse
agency decisions by withdrawing his 2020 appeal
without his consent.
2. 	The defendants failed to enforce, and acted with deliberate
indifference to, federal and state child protection laws
by:
a. 	Failing to investigate reports of child abuse;
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b. 	Allowing excessive use of corporal punishment against
children;
c. 	Retaliating against parent reporters of child abuse by
using the power and weight of the agency’s authority
to threaten reporters with the loss of their own
parental rights or the loss of their federal benefits;
and
d. 	Encouraging state and local police to threaten or
retaliate against reporters of child abuse with
charges, arrest, or prosecution for reporting child
abuse, including sexual abuse of minors.
3. 	Rispoli intentionally inflicted emotional distress by:
a. 	Physically threatening McMenamon; and
b. 	Having McMenamon witness physical violence,
psychological abuse, and sexual abuse of his children.
4. 	Rispoli negligently inflicted emotional distress by:
a. 	Physically threatening McMenamon; and
b. 	Having McMenamon witness physical violence,
psychological abuse, and sexual abuse of his children.
Id. at 24-35. 	As relief, McMenamon requests compensatory
damages, punitive damages, interest, costs, and attorneys’ fees.
Id. at 35-36. 	He also seeks injunctive relief, as to Count 2,
to prevent allegedly ongoing violations of his rights. 	Id.
Discussion
McMenamon’s complaint identifies multiple causes of action
in which he contends the defendants, acting in their individual
or official capacities, violated his federal constitutional
rights and state law. 	Liberally construed, McMenamon’s
allegations attempt to state multiple federal claims for relief
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under 42 U.S.C. § 1983, which, if correctly pled, would invoke
this court’s federal question jurisdiction, see 28 U.S.C. §
1331, as well as supplemental jurisdiction over his state-law
emotional distress claims, and claims that the defendants
violated state child protection laws, see id. § 1367.
A. 	Dismissal of monetary claims against the defendants in
their official capacities
McMenamon attempts to bring several claims against the
defendants in their official capacities in order to obtain
monetary relief for past deprivations of federal rights and
benefits. 	In doing so, he concedes that he is now receiving the
benefits he was temporarily denied. 	Because the Eleventh
Amendment precludes suits for damages against state employees
sued in their official capacities, see Davidson v. Howe, 749
F.3d 21, 27–28 (1st Cir. 2014), the district judge should
dismiss all claims against the defendants in their official
capacity, to the extent those claims seek monetary relief, and
construe McMenamon’s allegations as if brought against the
defendants in their individual capacities.
B. 	Claims Against Rispoli
In this case, McMenamon has sued Rispoli, who has been
involved in the events underlying this action as both a private
and a state employee. 	To the extent McMenamon asserts violation
of his federal constitutional and/or statutory rights under
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§ 1983 in Claims 1 and 2 above, those claims can only proceed
against Rispoli to the extent that her actions were taken “under
color of state law,” which appear to include McMenamon’s
allegations concerning Rispoli’s actions after she was employed
by DHHS. 	See Doe v. Harvard Univ., 462 F. Supp. 3d 51, 62-63
(D. Mass. 2020) (“For [a d]efendant to have acted under color of
state law, their actions must be fairly attributable to the
State.” (internal quotation marks and citations omitted)).
Claims 3 and 4, which arise under state law, can be asserted
against Rispoli as a private actor.
C. 	Deprivation of Medicaid and federal food assistance
benefits without statutorily required procedural due
process
In Count 1 of the complaint, McMenamon claims that, from
approximately September 2019 to September 2020, as a result of
the purportedly fraudulent acts by the defendants (described
above), he was deprived access to federal Medicaid and food
assistance benefits for his children without having first
received statutorily required due process. 	McMenamon alleges
that the defendants committed these purportedly fraudulent acts
while acting under state law, invoking a private right of action
under 42 U.S.C. § 1983.
“Section 1983 supplies a private right of action against a
person who, under color of state law, deprives another of ‘any
rights, privileges, or immunities secured by the Constitution
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and [federal] laws.’” 	Gray v. Cummings, 917 F.3d 1, 7–8 (1st
Cir. 2019) (quoting 42 U.S.C. § 1983). 	To satisfy the statute's
“injury” requirement, the plaintiff must show a deprivation of a
federally secured right. 	Farrar v. Hobby, 506 U.S. 103, 112
(1992).
McMenamon contends that, under several federal regulations,
the defendants were required to provide him notice and a hearing
before depriving him of federal benefits such as Medicaid and
food assistance. 	For example, McMenamon argues that, pursuant
to 42 C.F.R. § 431.211, the defendants were required to send him
a notice at least 10 days before taking certain actions,
including terminating existing Medicaid benefits and, pursuant
to 42 C.F.R. § 431.220, were required to grant him a hearing
before making such changes. 	He cites similar federal
regulations regarding the procedural due process owed to him
before being deprived of federal food assistance benefits.
McMenamon alleges that, instead of providing notice and a
hearing, the defendants, acting under state law, forged a
document identifying him as a “non-parental unit.”
These allegations, taken as true in this procedural
posture, arguably suffice to state a claim upon which relief can
be granted. 	In an Order issued simultaneously with this R&R
(“Simultaneous Order”), the court directs service of McMenamon’s
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due process claims (Claims 1(a)-(d)) on the defendants in their
individual capacities.
To the extent McMenamon also seeks to assert an independent
claim of “Medicaid fraud,” however, the District Judge should
dismiss such claim because neither federal nor New Hampshire
state law provides a private cause of action for “Medicaid
fraud.” 5 	See, e.g., Millennium Labs., Inc. v. Universal Oral
Fluid Labs., LLC, No. 8:11-cv-1757-MSS-TBM, 2012 WL 12905083, at
*3, 2012 U.S. Dist. LEXIS 191035, at *17 (M.D. Fla. Apr. 25,
2012) (explaining that federal health care fraud statutes
provide no private right of action); Rzayeva v. United States,
492 F. Supp. 2d 60, 78–79 (D. Conn. 2007) (dismissing healthcare
fraud claims because there is no private cause of action for
Medicare and Medicaid fraud); 31 U.S.C. § 3721 (false claims
against the United States government); N.H. Rev. Stat § 167:61-b
(2016) (false claims against NHDHHS).
5 A private individual may assert a qui tam claim on behalf
of the federal government under the False Claims Act (FCA), 31
U.S.C. § 3729, et seq., where there has been fraud on the
federal government. 	See Vt. Agency of Natural Res. v. United
States ex rel. Stevens, 529 U.S. 765, 771-78 (2000). 	Pro se
litigants like McMenamon, however, cannot bring qui tam claims
under the FCA. 	United States ex rel. Lu v. Trs. of Tufts Coll.,
No. 19-1381, 2019 WL 9524094, at *1, 2019 U.S. App. LEXIS 39388,
at *1 (1st Cir. Dec. 12, 2019); Tavares ex rel. United States,
No. 19-266-WES, 2019 WL 12363209, at *1, 2019 U.S. Dist. LEXIS
238462, at *3 (D.R.I. May 24, 2019).
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D. 	Enforcement of child protection laws and retaliation
In Count 2, McMenamon claims he is entitled to damages and
injunctive relief under 42 U.S.C. § 1983 for the defendants’
purported failures to effectively enforce federal and state
child protection laws (Claims 2(a)-(b)). 	Liberally construed,
his allegations also assert a § 1983 First Amendment claim for
monetary relief alleging that the defendants retaliated against
him for reporting alleged child abuse to state authorities
(Claims 2(c)-(d)).
With respect to McMenamon’s former claims (Claims 2(a)-
(b)), McMenamon has failed to state a claim upon which relief
can be granted. 	Although § 1983 provides a basis to enforce
rights protected by a federal statute, it does not provide a
basis for the general commencement of lawsuits to enforce
violations of federal law. 	Gonzaga Univ. v. Doe, 536 U.S. 273,
282 (2002). 	In order to be actionable under § 1983, the federal
statute the plaintiff seeks to enforce must confer “specific,
individually enforceable rights” upon the person who seeks to
enforce the statute and evidence an intent that these rights can
be privately enforced. 	Id. at 279-285.
The federal child abuse prevention and reporting statues
McMenamon seeks to enforce, however, confer no specific
individually enforceable rights on private plaintiffs. 	The
Child Abuse Prevention and Treatment Act (“CAPTA”), 42 U.S.C. §§
5101–5106a, for example, is a “federal funding statute enacted
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pursuant to Congress’s spending power,” Eric L. ex rel.
Schierberl v. Bird, 848 F. Supp. 303, 312 (D.N.H. 1994), which
“conditions state grants for child abuse and neglect prevention
and treatment programs on the requirement that states
investigate abuse and neglect reports promptly and take action
to protect the child upon a finding of abuse,” Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 901 (7th Cir. 1997). 	Neither
CAPTA nor its implementing regulations “mandate a particular
means of investigation or state what types of actions” state
defendants must take “to protect abused or neglected children.”
Tony L. ex rel. Simpson v. Childers, 71 F.3d 1182, 1189 (6th
Cir. 1995). 	As such, “the federal courts of appeal that have
considered” failure-to-report and failure-to-resolve child-abuse
allegations “have uniformly rejected arguments that provisions
of CAPTA create a private right.” 	Sheetz v. Norwood, 608 F.
App'x 401, 403 (7th Cir. 2015) (citing Doe ex rel. Fein v.
District of Columbia, 93 F.3d 861, 865–66 (D.C. Cir. 1996); Tony
L., 71 F.3d at 1189–90); Eric L., 848 F. Supp. At 313 (finding
that CAPTA confers no privately enforceable right under § 1983
to force state actors to “‘effectively’ enforce” state or
federal child abuse protection laws (citation omitted)).
With respect to McMenamon’s latter claims, his allegations,
liberally construed and taken as true for the purposes of
preliminary review, arguably make out a prima facie case of
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First Amendment retaliation for reporting allegedly criminal
activity. 	See, e.g., Posey v. Swissvale Borough, No. 2:12–cv–
955, 2013 WL 989953, at *6, 2013 U.S. Dist. LEXIS 34415, *22
(W.D. Pa. Mar. 13, 2013) (setting forth elements of § 1983 First
Amendment retaliation claim for private citizens filing police
reports); cf. McBride v. Vill. of Michiana, 100 F.3d 457, 461
(6th Cir. 1996) (“[R]etaliation by public officials against the
exercise of First Amendment rights is itself a violation of the
First Amendment.”); Fraternal Ord. of Police Hobart Lodge No.
121, Inc. v. City of Hobart, 864 F.2d 551, 553 (7th Cir. 1988)
(same). 	Accordingly, in the Simultaneous Order, the court
directs service of Claims 2(c)-(d) on the defendants in their
individual capacities.
E. 	Infliction of emotional distress
In New Hampshire, “[a] defendant is liable for intentional
infliction of emotional distress if he or she, ‘by extreme and
outrageous conduct, intentionally or recklessly cause[d] severe
emotional distress to another.’” 	Rand v. Town of Exeter, 976 F.
Supp. 2d 65, 76 (D.N.H. 2013) (quoting Tessier v. Rockefeller,
162 N.H. 324, 341 (2011)) 	“The conduct must be ‘so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’” 	Id. (quoting
Tessier, 162 N.H. at 341).
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In Counts 3 and 4, McMenamon claims that Rispoli, by
(allegedly) declaring McMenamon to be a non-parental unit, and
by (allegedly) threatening him and his children with physical,
psychological, and sexual violence, intentionally or negligently
caused him to suffer extreme emotional distress. 	He further
claims that the emotional distress manifested physically,
including extreme weight loss, loss of sleep and physical
ailments. 	Am. Compl. (Doc. No. 5-1, ¶ 111). 	These allegations,
taken as true in this procedural posture, arguably suffice to
state a claim upon which relief can be granted. 	In the
Simultaneous Order, the court directs service of McMenamon’s
infliction of emotional distress claims (Claims 3 and 4) against
Rispoli in her individual capacity.
Conclusion
For the foregoing reasons, the district judge should:
 	dismiss all claims for monetary damages against the
defendants in their official capacities;
 	dismiss Claim 1, to the extent McMenamon asserts a
private Medicaid fraud claim; and
 	dismiss Claims 2(a)-(b) for failure to state a claim
upon which relief might be granted.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
Case 1:21-cv-00479-PB Document 7 Filed 09/08/21 Page 19 of 20

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waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 8, 2021
cc: 	Richard A. McMenamon II, pro se
Case 1:21-cv-00479-PB Document 7 Filed 09/08/21 Page 20 of 20