Melendez v. University of New Hampshire et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Melendez
v. Civil No. 23-cv-00172-SM-TSM
University of New Hampshire, et al.
REPORT AND RECOMMENDATION ON DEFENDANTS’
MOTION TO DISMISS THE AMENDED COMPLAINT
Pro se plaintiff, Michael Melendez (“Melendez”), was enrolled as a student at the
University of New Hampshire’s Franklin Pierce Law School (“UNH Law”) from August 2020 to
September 2023, when he was disenrolled from the program. On March 3, 2023, Melendez filed
this action against the University of New Hampshire (“UNH”) and three of its employees. He has
since amended his complaint several times, each time adding new defendants and new claims. In
his Fourth Amended Complaint, which is the operative complaint, Melendez names twenty-one
separate defendants1 and asserts eighteen causes of action, including claims for violations of the
Americans with Disabilities Act (“ADA”) (Claim One), intentional infliction of emotional distress
(Claims Two, Four, Five, Seven, Eight, Eleven, Twelve, Thirteen, Fifteen, and Seventeen), false
light invasion of privacy (Claims Three and Ten), conspiracy (Claims Six, Nine, Sixteen, and
Eighteen), and violation of his Fourteenth Amendment right of due process (Claim Fourteen). The
matter is before the court on Defendants’ Motion to Dismiss the Amended Complaint (Doc. No.
1 Defendants include UNH, Lauren Berger, Shane Cooper, Nelson Raust, Brad Hinton, Sophie
Sparrow, Emily Wilcox, Megan Carpenter, Rebecca Purdom, Jon Cavicchi, Dale Kenny, Albert
Scherr, Michael Dube, Biron Bedard, Elizabeth Woodcock, Matthew Grady, James Dean, Melissa
Christensen, Seth Oranburg, Rachel Shapiro, and the law firm of Morgan, Brown & Joy, LLP.
Melendez alleges that each of the individual defendants, as well as Morgan, Brown & Joy, LLP,
was an employee or agent of UNH at all times relevant to his claims, and he has named all of those
defendants in both their official and personal capacities.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 1 of 37

2
39), by which defendants seek dismissal of all counts in the Fourth Amended Complaint on the
grounds that Melendez fails to allege sufficient facts to state plausible claims for relief. For all the
reasons detailed below, this court concludes that Melendez’s allegations sufficiently state plausible
claims for relief for disability discrimination under the ADA and for violations of his right to
procedural due process, but that he fails to state a claim under any other legal theory. Accordingly,
this court recommends that defendants’ motion to dismiss be granted in part and denied in part.
The District Judge should dismiss Claims Two through Thirteen and Claims Fifteen through
Eighteen of Melendez’s Fourth Amended Complaint but deny defendants’ motion with respect to
Claims One and Fourteen.
BACKGROUND
Defendants seek dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept as
true all well-pleaded facts set forth in the complaint and draw all reasonable inferences therefrom
in the pleader’s favor.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Artuso
v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011)). The facts may be derived not only from the
complaint, but also from “whatever documents are either annexed to it or fairly incorporated into
it, and any relevant matters that are susceptible to judicial notice.” Redondo-Borges v. U.S. Dep’t
of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005). Where, as here, the plaintiff proceeds pro
se, the court must construe his allegations liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (documents filed pro se must “be liberally construed” (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). However, the court will “not credit ‘bald assertions, unsupportable
conclusions, periphrastic circumlocutions, and the like.’” Redondo-Borges, 421 F.3d at 5 (quoting
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 2 of 37

3
Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)). Applying this standard to the instant case, the
relevant facts are as follows.2
Melendez’s Alleged Disabilities
This action arises out of events that occurred between August 2020 and September 2023,
when Melendez was enrolled as a student at UNH Law. See Fourth Amended Complaint (Doc.
No. 38) (“Fourth Compl.”) at ¶ 233. Melendez alleges that he was diagnosed with a number of
mental health disorders, including combat-related post-traumatic stress disorder (“PTSD”),
insomnia, paranoia, major depressive disorder, and attention deficit hyperactivity disorder
(“ADHD”), which rendered him disabled. See id. at ¶¶ 28, 57. He also alleges that the Department
of Veteran’s Affairs (“VA”) and the Social Security Administration (“SSA”) each rated him 100%
disabled. Id. at ¶ 29. Although Melendez does not specify when he received his diagnoses or the
disability ratings from the VA and the SSA, he claims that “[p]rior to the Fall 2022 semester,
Defendants were provided an extensive, detailed report about Plaintiff’s disabilities, the symptoms
involved, and factors that would aggravate Plaintiff’s disability symptoms.” Id. at ¶ 80.
Accordingly, he claims that defendants were aware of the nature and extent of his impairments by
the start of his fall 2022 semester at UNH Law at the latest.
Melendez alleges that his mental health disorders interfered with his ability to learn new
information and understand instructions. Id. at ¶ 63. As a result, Melendez contends that he had
difficulty understanding the requirements of his law school courses and the instructions for
completing specific assignments. See id. at ¶ 62. He further contends that the symptoms caused
by his impairments were “significantly aggravated by being in public[,]” and that the aggravation
2 Additional factual details relevant to the court’s analysis are included in the Discussion section
below.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 3 of 37

4
of his symptoms rendered him mentally incapable of completing social, work-related, or other
necessary tasks. Id. at ¶¶ 58-59. These issues allegedly made it difficult for Melendez to attend
and participate in his law school classes in person. See id. at ¶¶ 60-61
Melendez’s Requests for Accommodations
Melendez’s first year of law school, which began in the fall of 2020, took place during the
COVID-19 pandemic. Id. at ¶ 124. Allegedly, due to the pandemic, plaintiff’s classes were held
remotely and he completed his first year successfully through remote learning.3 Id. at ¶¶ 125-26.
However, circumstances changed during the fall 2022 semester, when Melendez entered his third
year of law school and UNH Law required students to attend classes in person. See id. at ¶¶ 128-
30. Melendez claims that throughout the time period from about August 2022 through the end of
the semester in December 2022, defendants’ failure to provide him with reasonable
accommodations, despite his repeated requests, resulted in his exclusion from UNH Law’s
programs, benefits, and classes “by reason of his disabilities[.]” See id. at ¶¶ 57, 65, 73.
Specifically, Melendez claims that prior to and throughout the fall 2022 semester, he made
numerous requests for accommodations, both orally and in writing, that would have enabled him
to attend classes despite his alleged disabilities. See id. at ¶¶ 60-66. His requests included the
opportunity to attend all of his classes remotely, the appointment of an advisor, “centralized
assistance with understanding the syllabus and other course requirements[,]” and “centralized
assistance with understanding the instructions of specific assignments.” Id. at ¶¶ 60, 62. Melendez
contends that defendants declined to provide him with any of the proposed accommodations or
offer a legitimate reason for denying his requests, even though they were aware of his mental
3 Melendez alleges that he completed his second year of law school successfully, but he does not
specify whether the second year classes were held remotely or in person. See Fourth Compl. at ¶
278.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 4 of 37

5
health conditions and need for the accommodations. Id. at ¶¶ 68-70, 80-82, 139. Additionally, he
contends that defendants’ refusal to grant his requests deprived him of the opportunity to attend
class, caused his mental health symptoms to worsen, and led to his wrongful dismissal from UNH
Law, among other adverse impacts. Id. at ¶¶ 73-74.
The October 5, 2022 Incident
During the fall semester of 2022, Melendez was enrolled in six law school courses. Id. at
¶ 128. One of those courses, Wills, Trusts, and Estates, was taught by defendant Nelson Raust
(“Raust”). Id. at ¶ 88. Melendez alleges that on October 5, 2022, Raust humiliated him in front
of the class, which rendered Melendez so emotionally damaged that he could no longer participate
in the class. See id. at ¶¶ 91-104.
Specifically, Melendez alleges that on October 5, 2022, when he was physically present in
Raust’s Wills, Trusts, and Estates class, Raust mistook another student as plaintiff’s guest who
was attending the class without authorization. See id. at ¶¶ 92-95. At some point during the class,
Faust interrupted his own lecture to ask whether plaintiff’s “guest” could answer a question that
was posed by another student. Id. at ¶¶ 92, 94. According to Melendez, Raust’s motivation for
calling on the student was to expose her as an “unauthorized attendee and humiliat[e] Plaintiff
Melendez.” Id. at ¶ 94. Melendez alleges that Raust’s portrayal of plaintiff “as a student engaged
in inappropriate behavior with a female student during class” harmed his reputation “in a career
field [in which] reputation is vital[.]” Id. at ¶ 98.
Allegedly, Melendez was so embarrassed by the incident that he suffered “a mental health
crisis” and had to leave the class. Id. at ¶ 99. As he was leaving the room, however, Raust
interrupted the lecture a second time, smirked at plaintiff, and said “Good-bye, Michael” in a
condescending tone. Id. at ¶¶ 100-01. Melendez contends that Raust’s comment exacerbated his
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 5 of 37

6
feelings of humiliation and emotional trauma. Id. at ¶¶ 102, 104. He further contends that he
could no longer participate in Raust’s class “due to being significantly emotionally damaged” by
Raust’s behavior. Id. at ¶ 104.
The experience in Raust’s class, along with UNH Law’s alleged failure to provide him
reasonable accommodations, prompted Melendez to file a complaint with UNH’s Civil Rights and
Equity Office (“CREO”) in November 2022. See id. at ¶ 154. Therein, Melendez asserted claims
of discrimination against several defendants named in this action. Id. at ¶ 159. Melendez alleges
that he sought assistance from CREO for allegedly ongoing discrimination through January 2023.
Id. at ¶ 154. However, the CREO Director, defendant Emily Wilcox (“Wilcox”), determined that
“there was no indication of discrimination or need to investigate, despite being given significant
evidence discrimination may be occurring[,]” and she declined to investigate Melendez’s claims.
Id. at ¶¶ 155, 160. Plaintiff alleges that Wilcox’s failure to investigate his allegations was not only
irrational and reckless, but also exposed him to additional acts of discrimination and caused him
to suffer further emotional harm. Id. at ¶¶ 155-57.
Plaintiff’s Fall 2022 Semester Grades
Melendez received failing grades in five out of six courses during the fall 2022 semester,
a result he attributes to defendants’ discriminatory conduct and desire to retaliate against him for
filing his complaint with CREO in November 2022. See id. at ¶¶ 118-19, 128-30, 147. His one
passing grade was in Criminal Clinic, which Melendez alleges was the only course in which the
professor provided him with his requested disability accommodations. Id. at ¶¶ 131-32, 134.
Melendez maintains that his failing grades did not accurately measure his ability to succeed in law
school. See id. at ¶¶ 136-38. Rather, he asserts that he “has significant potential in a legal career”
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 6 of 37

7
and that he received those grades due to the denial of accommodations for his allegedly disabling
mental health conditions. Id. at ¶¶ 136, 284.
After receiving the failing grades, Melendez allegedly went on suicide watch and obtained
permission to take a medical leave of absence during the spring 2023 semester. See id. at ¶¶ 171,
196, 203-04, 206. In the meantime, in January 2023, UNH Law’s Committee of Academic
Standing and Success (“CASS”) notified plaintiff that he had been referred to CASS as a result of
his academic performance. See id. at ¶¶ 165, 167. Melendez claims that the members of CASS,
all of whom are named as defendants in this action, were aware that his referral to CASS was
inappropriate because his failing grades were attributable to the failure to accommodate his
disability rather than his actual academic performance. See id. at ¶¶ 168-69, 175. He further
claims those defendants nevertheless sent him hostile, harassing emails, and threatened him with
disenrollment from the law school, in retaliation for his decision to file a complaint with CREO.
See id. at ¶¶ 165, 170-71.
Allegedly, the harassing emails included multiple communications from CASS member,
defendant Sophie Sparrow (“Sparrow”), in which Sparrow included the following comment: “The
content is based on your reflection and thoughts about your academic performance and what steps
you can and will take to improve it.” Id. at ¶ 178. Melendez claims that this statement was
inappropriate and malicious because Sparrow implied that his failing grades were based on his
academic performance instead of defendants’ failure to provide him reasonable accommodations.
See id. at ¶¶ 179-80. He also claims that Sparrow’s “attempts to degrade [his] character” were
motivated by her desire to retaliate against him for his complaints of discrimination and his filing
of the instant litigation. Id. at ¶ 182.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 7 of 37

8
Additional Contacts During Melendez’s Medical Leave of Absence
Melendez initiated the instant litigation against UNH and three of the individual defendants
on March 3, 2023. Doc. No. 1. Despite his pending lawsuit, plaintiff claims that various
defendants engaged in inappropriate discriminatory and/or retaliatory conduct toward him, which
caused him further harm. For instance, on March 27, 2023, while Melendez was on his medical
leave of absence from UNH Law, defendant Matthew Grady (“Grady”) allegedly sent two emails
to Melendez’s school email address and one email to plaintiff’s personal account instructing
Melendez to register for his fall 2023 classes. Fourth Compl. at ¶¶ 189-90. Melendez contends
that Grady was aware of plaintiff’s severe disabilities and had no legitimate reason for contacting
plaintiff while he was on medical leave. Id. at ¶¶ 187-88. He also contends that Grady’s emails
aggravated his symptoms and caused him to suffer emotional distress because they forced him to
focus on official law school activities and interact with defendants. Id. at ¶¶ 191-92, 196.
Moreover, plaintiff claims that Grady’s conduct caused him “undue burden; . . . financial loss; loss
of reputation; humiliation; mental suffering; . . . being wrongfully dismissed from the law school;
and a significantly documented, permanent increase in disability rating.” Id. at ¶ 197.
Melendez also claims that he suffered emotional, mental, and financial harm because
defendants contacted him on two additional occasions during the summer of 2023. The first
incident allegedly took place on July 5, 2023. Plaintiff alleges that defendant Jon Cavicchi
mistakenly included Melendez on email communications in which members of CASS discussed
plaintiff’s accusations of disability discrimination and retaliation and conducted a poll to determine
whether “to withhold services from Plaintiff.” See id. at ¶¶ 199-208. Melendez asserts that
defendants’ comments about him were negative, humiliating, degrading, and inappropriate, and
that they caused him to suffer significant harm. Id. at ¶¶ 202, 208, 210. He also asserts that
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 8 of 37

9
defendants’ actions were “outrageous” because “Defendants are administrators [who] engaged in
discussions to discriminate and retaliate against Plaintiff,” and that they should be held liable for
the intentional infliction of emotional distress. Id. at ¶ 211; see also id. at ¶ 199.
The second communication at issue consists of a July 13, 2023 email that Melendez
received from Rachel Shapiro, an attorney who worked at defendants’ outside law firm, defendant
Morgan, Brown & Joy, LLP (“Morgan, Brown”). See id. at ¶ 216. Melendez alleges that on July
11, 2023, he sent an email to defendants in which he stated:
I have already demanded that the university and its staff refrain from contacting me
without legal counsel. You and your staff have done nothing but discriminated
(sic) against me, retaliated, and humiliated me. If there is any further contact from
the university or its members, I will be forced to seek assistance from the court.
Id. at ¶ 215. In her email dated July 13, 2023, however, Attorney Shapiro allegedly informed
Melendez that defendants were allowed to continue to contact him as they deemed necessary. Id.
at ¶ 216. Plaintiff contends that Attorney Shapiro sent the email “under the pretext of discussing
the university’s policy and procedures with Plaintiff” but that she had no legitimate reason for
contacting him about those matters because she is not an administrator at UNH, had no
responsibility for advising him about UNH’s operating procedures or counseling him on how to
conduct himself with respect to school-related matters, and “had no reason to believe her actions
were lawful.” Id. at ¶¶ 217-21, 228. Additionally, Melendez claims that Attorney Shapiro’s
conduct was “outrageous” because she was “a licensed attorney who used her position in attempts
to coerce [him] to endure further discrimination, and recklessly inflicted emotional damage.” Id.
at ¶ 226.
Plaintiff’s Dismissal from UNH Law
In September 2023, Melendez was disenrolled from UNH Law under the school’s
Academic Standing and Review policy. Id. at ¶ 237; see also id. at ¶ 233. Plaintiff contends that
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 9 of 37

10
the decision to disenroll him violated the law school’s written policies, deprived him of his
constitutional right to due process, and was caused by defendants’ failure to accommodate his
alleged disabilities rather than his own academic performance. See id. at ¶¶ 235-65, 278, 284. He
also contends that defendants’ decision to disenroll him while he was still under a suicide watch
and on a medical leave of absence was outrageous, malicious, and caused him to suffer “undue
burden; aggravation of disability symptoms; financial loss; loss of reputation; humiliation; mental
suffering; emotional distress; being wrongfully dismissed from the law school; and a significantly
documented, permanent increase in disability rating.” Id. at ¶¶ 270-73. Moreover, Melendez
alleges that defendants’ failure to provide him with an advocate to protect his interests prior to his
removal from UNH Law was motivated by their desire to retaliate against him for filing the instant
action. See id. at ¶¶ 282, 286-87, 290, 292.
LEGAL STANDARD
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Although this standard does not impose “a ‘probability requirement,’” it requires “more than
a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
As described above, pro se litigants like Melendez are entitled to have their complaints
construed liberally. See Erickson, 551 U.S. at 94. “However, pro se status does not insulate a
party from complying with procedural and substantive law.” Ahmed v. Rosenblatt, 118 F.3d 886,
890 (1st Cir. 1997). “[E]ven a pro se plaintiff is required ‘to set forth factual allegations, either
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 10 of 37

11
direct or inferential, respecting each material element necessary to sustain recovery under some
actionable legal theory.’” Adams v. Stephenson, 116 F.3d 464, 1997 WL 351633, at *1 (1st Cir.
1997) (unpublished table decision) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st
Cir. 1988)). “If the factual allegations in the complaint are too meager, vague, or conclusory to
remove the possibility of relief from the realm of mere conjecture, the complaint is open to
dismissal.” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012) (quoting SEC v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010)).
DISCUSSION
In his Fourth Amended Complaint, Melendez asserts eighteen causes of action, including
claims for disability discrimination under the ADA (Claim One), intentional infliction of emotional
distress (“IIED”) (Claims Two, Four, Five, Seven, Eight, Eleven, Twelve, Thirteen, Fifteen, and
Seventeen), false light invasion of privacy (Claims Three and Ten), conspiracy (Claims Six, Nine,
Sixteen, and Eighteen), and violation of his Fourteenth Amendment right of due process (Claim
Fourteen). Defendants argue that each of these claims must be dismissed for failure to state a
plausible claim for relief. Melendez objects and argues that dismissal is not warranted.
I. Claim One: Alleged Violations of the ADA
In Claim One of his Fourth Amended Complaint, Melendez asserts claims against three
UNH Law employees in their individual and official capacities, Shane Cooper (“Cooper”), Lauren
Berger (“Berger”), and Brad Hinton (“Hinton”), for disability discrimination pursuant to Title II
of the ADA, 42 U.S.C. § 12132. Specifically, Melendez alleges that Cooper, Berger, and Hinton
violated the ADA by failing to provide him with reasonable accommodations that would have
enabled him to attend class despite his mental disabilities. Fourth Compl. at ¶¶ 57-74. Defendants
move to dismiss Claim One on the grounds that there is no individual liability under the ADA and
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 11 of 37

12
that Melendez fails to plead sufficient facts to satisfy the elements of his claim. Doc. No. 39-1 at
2, 6-9. Defendants’ motion to dismiss this claim should be granted with respect to Melendez’s
claims against Cooper, Berger, and Hinton in their individual capacities but denied with respect to
Melendez’s official capacity claims against these defendants.
A. Individual Capacity Claims
A threshold issue raised by defendants’ motion to dismiss is whether Title II of the ADA
allows Melendez to pursue his ADA claims against Cooper, Berger, and Hinton in their individual
capacities. Although the First Circuit Court of Appeals has yet to rule on this question, “those
district courts in this circuit that have directly addressed this issue have followed the majority of
other circuits in concluding that individual liability is not available under the ADA[.]” Tveter v.
Derry Coop. Sch. Dist. SAU #10, No. 16-cv-329-PB, 2017 WL 2062944, at *5 (D.N.H. Apr. 25,
2017), adopted by 2017 WL 2062855 (D.N.H. May 12, 2017). See also Albra v. Advan, Inc., 490
F.3d 826, 830 (11th Cir. 2007) (affirming dismissal of individual capacity claims brought under
the ADA “[b]ecause individual liability is precluded for violations of the ADA’s employment
discrimination provision”); Green v. City of New York, 465 F.3d 65, 76 (2d Cir. 2006) (“As
plaintiffs tacitly concede, Giblin, the principal actor in this case, is not a proper defendant [under
Title II of the ADA] because he is an individual, not a public entity.”). The plain language of the
statute amply supports this conclusion. “Title II of the ADA prohibits discrimination by a ‘public
entity,’ defined as any state or local government, department, agency, or other instrumentality.”
Gray v. Hanks, No. 20-cv-152-PB, 2021 WL 2593613, at *4 (D.N.H. Jun. 8, 2021) (citing 42
U.S.C. § 12131(1)), adopted by 2021 WL 2592171 (D.N.H. Jun. 23, 2021). Because individuals
do not fall within the scope of this definition, it follows that “individuals cannot be sued in their
personal capacities directly under the provisions of [the ADA].” Id. Accordingly, this court
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 12 of 37

13
recommends that the District Judge dismiss the ADA claims to the extent they are brought against
Cooper, Berger, and Hinton in their individual capacities.
B. Official capacity claims
The court next considers whether Melendez alleges plausible ADA claims against Cooper,
Berger, and Hinton in their official capacities.4
To state a claim for a violation of Title II [of the ADA], a plaintiff must allege: (1)
that he is a qualified individual with a disability; (2) that he was either excluded
from participation in or denied the benefits of some public entity’s services,
programs, or activities or was otherwise discriminated against; and (3) that such
exclusion, denial of benefits or discrimination was by reason of his disability.
Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006). “As to the third element, there are three distinct
grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact; and
(3) failure to make reasonable accommodations.” Joseph M. v. Becker Coll., 531 F. Supp. 3d 383,
395 (D. Mass. 2021) (citing Nunes v. Massachusetts Dep’t of Corr., 766 F.3d 136, 144-45 (1st Cir.
2014)). Melendez claims that defendants discriminated against him by failing to provide him with
reasonable accommodations.
Defendants contend that Melendez does not allege sufficient facts to satisfy the elements
of an ADA claim. Doc. No. 39-1 at 6-8. The court disagrees. Regarding the first element,
Melendez sufficiently alleges that he was a qualified individual with a disability during his
enrollment at UNH Law. See 42 U.S.C. § 12131(2) (defining “qualified individual with a
4 An official capacity suit is not a suit against the individual “but rather is a suit against the
[individual’s] office.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore,
a claim against defendants in their official capacities is in essence a claim against UNH Law. See,
e.g., Innes v. Bd. of Regents of Univ. Sys. of Maryland, 29 F. Supp. 3d 566, 575 (D. Md. 2014)
(“A lawsuit against President Loh in his official capacity is in essence a lawsuit against the
University of Maryland.”); Fox v. State Univ. of New York, 497 F. Supp. 2d 446, 451 (E.D.N.Y.
2007) (dismissing ADA claims against state university administrators in their official capacities
because “the State is the real party in interest” with respect to those claims and they “would be
redundant” of plaintiff’s ADA Title II claims against the university).
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 13 of 37

14
disability” to mean “an individual with a disability who, with or without reasonable modifications
to rules, policies, or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements
for the receipt of services or the participation in programs or activities provided by a public
entity.”). Melendez alleges that during the relevant time period, he suffered from a number of
mental impairments, including combat-related PTSD, insomnia, paranoia, major depressive
disorder and ADHD, which rendered him disabled because they interfered with his ability to carry
out social, work, and other life sustaining tasks, especially when he was exposed to the public.
Fourth Compl. at ¶¶ 57-59; see Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010)
(defining “disability” to include “a physical or mental impairment which substantially limits one
or more of an individual’s major life activities”). Melendez also alleges that he was able to
complete his courses successfully when given the opportunity to attend his classes remotely,
including during the fall 2022 semester, and he maintains that he would have completed law school
successfully if defendants provided him with reasonable accommodations, including but not
limited to, the ability to attend class remotely on a permanent basis. See id. at ¶¶ 60-61, 85, 126,
134, 136-40. Thus, plaintiff sufficiently alleged that he is a qualified individual with a disability
and satisfies the first element of his ADA claim. See Toledo, 454 F.3d at 32 (finding that plaintiff
properly alleged that he was a qualified individual with a disability where he alleged that he had a
mental impairment that substantially limited his ability to learn, “and that save for his disability he
was qualified to participate in the architecture program at the University [of Puerto Rico].”).
Melendez’s allegations easily satisfy the second element of his ADA claim. Specifically,
Melendez alleges that UNH Law is a school within UNH, which is a public entity, and that UNH
Law prevented him from attending and participating in his law classes by denying him reasonable
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 14 of 37

15
accommodations that would have enabled him to attend his classes remotely, understand the course
requirements, and understand instructions regarding specific assignments notwithstanding his
mental disability. See Fourth Compl. at ¶¶ 32-33, 60-64, 71-73. Consequently, Melendez
sufficiently alleges that defendants excluded him from participation in the benefits of a public
entity’s services or programs.
With respect to the third element— whether plaintiff’s exclusion from participation in the
benefits of UNH Law’s services or programs was by reason of his disability— Melendez alleges
that defendants were aware of his disabilities and the harm he would suffer without the requested
accommodations, and that they had “no rational or legitimate reason to withhold the
accommodations.” Id. at ¶¶ 69-70. At this stage in the proceedings, these allegations are adequate
to support an inference that defendants’ decision to deny his requests for accommodations was
discriminatory and due to his status as a person with a disability. See Toledo, 454 F.3d at 31-32
(finding that plaintiff sufficiently alleged that public university denied him benefits or otherwise
discriminated against him “by reason of his disability” where he alleged that “he was unable to
fulfill the requirements of his courses because of his disability and that his professors, his advisor,
and the dean all refused to provide reasonable accommodation so that he could complete his course
work and register for classes.”). Therefore, this court concludes that Melendez has stated a
plausible ADA claim against Cooper, Berger, and Hinton in their official capacities.
Defendants nevertheless assert that plaintiff fails to meet the requisite standard because he
fails “to describe or identify his alleged disability, much less evidence to plausibly demonstrate
that the alleged accommodations would have been effective or that they were denied without any
conceivable legitimate basis.” Doc. No. 39-1 at 7. They further argue that his claim should be
dismissed because he fails to allege facts describing Cooper’s, Berger’s, and Hinton’s involvement
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 15 of 37

16
in the decision to deny Melendez’s requests for accommodations or to “put forth any allegations
establishing a discriminatory motive to do so.” Id. at 7-8. As described above, however, Melendez
alleges specific facts regarding the nature of his disability and resulting symptoms. He also alleges
facts explaining why his proposed accommodations would have been effective. For example, he
alleges that the ability to attend classes remotely would have minimized his exposure to the public,
thereby preventing an aggravation of symptoms that interfered with his capacity to work, interact,
or carry out other life sustaining tasks. Fourth Compl. at ¶¶ 58-61. He also alleges that the
appointment of an advisor to provide him with centralized assistance would have “reduce[d] the
stimulus overload” resulting from his impairments and enabled him to understand his course
requirements and individual class assignments. Id. at ¶¶ 62-64. Additionally, Melendez
specifically alleges that defendants provided no legitimate reasons for denying his requests for
accommodations and had no rational or legitimate reasons for doing so even though they
understood the harm that would result from the denial. Id. at ¶¶ 68-70. Thus, he claims that there
was no justifiable reason to withhold the accommodations, and that defendants’ decision in this
regard was based on discrimination. See Toledo, 454 F.3d at 32 (ruling that plaintiff stated claim
against university for violation of Title II of the ADA where plaintiff alleged that “he was unable
to fulfill the requirements of his courses because of his disability” and that university personnel
“refused to provide reasonable accommodation so that he could complete his course work and
register for classes.”); Adams v. Montgomery Coll. (Rockville), 834 F. Supp. 2d 386, 393 (D. Md.
2011) (ruling that plaintiff stated claim against college for violation of Title II of the ADA where
plaintiff alleged that that college failed to provide a reasonable accommodation for her disability
based on its refusal to transport her back to her vehicle after class).
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 16 of 37

17
To the extent defendants urge the court to dismiss the ADA claim on the grounds that
Melendez failed to explain how Cooper, Berger, and Hinton “were personally involved in or
responsible for any alleged denial of an accommodation,” their argument is at odds with the Fourth
Amended Complaint. See Doc. No. 39-1 at 7-8. Therein, Melendez specifically alleges that he
requested accommodations from Berger prior to the fall 2022 semester, and that he requested
accommodations from Cooper and Hinton throughout the fall 2022 semester. Id. at ¶ 65.
Melendez asserts that he made the requests to defendants verbally, through emails, and through
his advisor, Melissa Davis, “on numerous occasions[,]” and that defendants denied his requests,
without providing a legitimate reason, even though they were aware of his severe mental health
condition and had a statutory obligation to provide Melendez with an equal opportunity as non-
disabled students to participate in class. Id. at ¶¶ 66-69. Because Melendez states a plausible
claim for violation of his rights under the ADA, this court recommends that the motion to dismiss
be denied with respect to Claim One of his Fourth Amended Complaint.
II. Claims Two, Four, Five, Seven, Eight, Eleven, Twelve, Thirteen, Fifteen and
Seventeen: Intentional Infliction of Emotional Distress (IIED)
In Claims Two, Four, Five, Seven, Eight, Eleven, Twelve, Thirteen, Fifteen, and Seventeen
of the Fourth Amended Complaint, Melendez asserts IIED claims against various defendants.
Defendants argue that dismissal of these Claims is warranted because they are based on
commonplace administrative and academic conduct that cannot be deemed sufficiently extreme
and outrageous to state a plausible claim for relief. Doc. No. 39-1 at 9-11. The court agrees and
recommends that each of these Claims be dismissed.
Under New Hampshire law, “[t]he standard for making a claim of [IIED] is very high.”
Moss v Camp Pemigewassett, Inc., 312 F.3d 503, 511 (1st Cir. 2002). To state such a claim, “a
plaintiff must allege that a defendant: (1) by extreme and outrageous conduct, (2) intentionally or
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 17 of 37

18
recklessly caused (3) severe emotional distress.” Doe v. West Alton Marina, LLC, 646 F. Supp.
3d 315, 321-22 (D.N.H. 2022). “In determining whether conduct is extreme and outrageous [under
New Hampshire law], it is not enough that a person has ‘acted with an intent which is tortious or
even criminal, or that he has intended to inflict emotional distress, or even that his conduct has
been characterized by malice.’” Mikell v. Sch. Admin. Unit No. 33, 158 N.H. 723, 729 (2009)
(additional quotation marks omitted) (quoting Restatement (Second) of Torts § 46 comment d at
73 (1965)). Rather, “[l]iability has been found only where the conduct has been 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 Restatement
(Second) of Torts § 46 comment d at 73 (1965)). As discussed below, the Fourth Amended
Complaint alleges no facts that come close to meeting this high bar.
A. Claim Two: IIED claim against Cooper, Berger, and Hinton
In Claim Two, Melendez seeks to hold Cooper, Berger, and Hinton liable for IIED based
on their alleged failure to provide him with reasonable accommodations so he could attend classes
despite his disabling mental impairments. Although failure to accommodate a plaintiff’s disability
may give rise to an ADA claim, such conduct “come[s] nowhere near the formidable standard
necessary to support a claim for [IIED].” Gascard v. Franklin Pierce Univ., No. 14-cv-220-JL,
2015 WL 1097485, at *9 (D.N.H. Mar. 11, 2015) (internal quotations and citation omitted).
Because Melendez has alleged nothing more than a failure to accommodate his disabilities, he fails
to allege a plausible IIED claim against these defendants.
In support of this claim, Melendez alleges that Cooper, Berger, and Hinton were aware of
his disabilities, the accompanying symptoms, the factors that would aggravate his symptoms, and
the potential harm that he would suffer if they failed to provide him with the requested
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 18 of 37

19
accommodations but that they “continued to recklessly deny [him] the necessary disability
accommodations without any legitimate reason.” See Fourth Compl. at ¶¶ 79-82. Melendez also
alleges that defendants’ conduct was outrageous, not only because of their knowledge regarding
his symptoms and potential harm, but also because they held positions of authority at UNH Law.
Id. at ¶ 84. Under New Hampshire law, however, “discrimination on the basis of disability” is
insufficient to support and IIED claim. Davis v. United Postal Serv., Inc., No. Civ. 02-585-B,
2003 WL 21146167, at *3 (D.N.H. May 16, 2003). Moreover, the fact that defendants were in
positions of authority over Melendez, and allegedly had knowledge about the nature and extent of
his mental impairments, does not elevate their conduct to the level of atrocity necessary to maintain
a claim for IIED against them. See Mikell, 158 N.H. at 729 (finding that teacher’s false accusation
of misconduct against a student who subsequently committed suicide, even when coupled with
teacher’s “position of authority,” did not “rise[ ] to the level of extreme and outrageous conduct
necessary to sustain a claim for [IIED]”). In short, Cooper’s, Berger’s, and Hinton’s alleged failure
to provide Melendez with the requested accommodations comes nowhere close to the type of
behavior that is “utterly intolerable in a civilized community.” Id. (quotations and citation
omitted). Therefore, Claim Two should be dismissed.
B. Claim Four: IIED claim against Raust
In Claim Four, Melendez alleges that Raust recklessly inflicted emotional distress on him
by falsely accusing plaintiff, in front of a class of students, of inviting an unauthorized attendee to
one of Raust’s lectures and by calling the class’s attention to Melendez a second time as Melendez
left the classroom. See Fourth Compl. at ¶¶ 88-102, 107. In support of this claim, Melendez
alleges that Raust’s conduct was outrageous because Raust:
1) Is a professor humiliating a student (Plaintiff); 2) Maintained authority over
Plaintiff Melendez during class; 3) Knew Plaintiff was significantly disabled;
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 19 of 37

20
4) Knew Plaintiff Melendez was in a vulnerable state; 5) Knew Plaintiff
Melendez was protected by right; 6) Recklessly disregarded Plaintiff’s well-
established rights; 7) Knew the comments would hurt Plaintiff Melendez; 8)
Interrupted the lecture to announce a second comment; 9) Knew Plaintiff was
departing due to being harmed by the first comment; 10) Distributed comment
while smirking; 11) Distributed comment with condescending tone; and 12)
Distributed comment while waiving his hand in a “Good-bye” gesture; 13)
[R]ecklessly made a spectacle of Plaintiff during an active mental health crisis;
and 14) [R]ecklessly damaged Plaintiff’s reputation in a career field [in which]
reputation is vital.
Id. at ¶ 108. He further alleges that Raust’s conduct aggravated his mental health symptoms,
interfered with his ability to attend class, and caused him to suffer a number of harms, including
mental and emotional distress. Id. at ¶¶ 112-13. As with his other IIED claims, Melendez’s
allegations are inadequate to state a plausible claim for IIED against Raust.
The New Hampshire Supreme Court recognizes that “false accusations may be grounds for
liability under an [IIED] claim.” Mikell, 158 N.H. at 729. It also acknowledges that “[t]he extreme
and outrageous character of the conduct may arise from an abuse by the actor of a position . . .
which gives him actual or apparent authority over the other, or power to affect his interests.” Id.
(quoting Restatement (Second) of Torts § 46 comment e at 74). Significantly, however, liability
for IIED “does not extend to situations that may very well be upsetting but are nonetheless a
consequence of regular participation in society.” West Alton Marina, 646 F. Supp. 3d at 322.
Raust’s alleged comments, even when combined with his position of authority over Melendez, are
the types of comments that individuals must sometimes endure as a feature of daily life. See
Mikell, 158 N.H. at 729 (allegations that special education teacher “misused her position of
authority over [a student] by making a false report of misconduct in an effort to affect his
disciplinary record and eventually expel him from the school” “did not “rise[] to the level of
extreme and outrageous conduct necessary to sustain a claim for [IIED]”). Although the alleged
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 20 of 37

21
conduct embarrassed and/or triggered Melendez, it was not sufficiently extreme and outrageous to
support a claim for IIED. Accordingly, Claim Four should be dismissed.
C. Claim Five: IIED claim against Cooper, Berger, Purdom, Hinton, Dube, Scherr,
Woodcock, Bedard, & Raust
Melendez also asserts an IIED claim against four UNH Law administrators, including
Cooper, Berger, Hinton, and Rebecca Purdom, and five UNH Law professors, including Raust,
Michael Dube, Albert Scherr, Elizabeth Woodcock, and Biron Bedard. See Fourth Compl. at
Claim Five. Specifically, in Claim Five, Melendez alleges that the nine named defendants knew
that plaintiff’s mental impairments precluded him from participating in his classes and that they
had a legal obligation to provide him with reasonable accommodations. Id. at ¶¶ 115-16. Yet, he
claims they used their respective positions of authority to withhold accommodations from him and
allow him to receive failing grades during the fall 2022 semester because they wanted to retaliate
against him for filing a discrimination complaint with the CREO. Id. at ¶¶ 116, 118-19. Melendez
claims that defendants’ actions were malicious and intended to cause him emotional distress, and
that he suffered mental and emotional distress, among other harms, as a result of their conduct.
See id. at ¶¶ 116, 141-43.
Yet again, the actions alleged in Claim Five do not support an IIED claim because they do
not rise to the level of extreme and outrageous conduct. As previously discussed, defendants’
alleged failure to provide reasonable accommodations is insufficient to satisfy the requisite
standard. Nor is it sufficient that defendants allegedly were motivated by retaliatory animus. See
Davis, 2003 WL 21146167, at *3 (“discrimination on the basis of disability, verbal harassment
and retaliation are not, without more, sufficient to support an [IIED] claim”). Moreover,
Melendez’s conclusory characterization of defendants’ conduct as “malicious” and intended to
cause him harm does not elevate their alleged conduct to the level of atrocity necessary to maintain
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 21 of 37

22
a claim against these defendants. See Mikell, 158 N.H. at 729 (for purposes of an IIED claim, it
is not enough that a defendant acted with a tortious or criminal intent, intended to inflict emotional
distress, “or even that his conduct has been characterized by malice.” (quotations and citation
omitted)). Consequently, Claim Five fails to state a plausible claim for relief and should be
dismissed.
D. Claim Seven: IIED claim against Emily Wilcox
In Claim Seven, Melendez alleges that Wilcox, the Director of CREO, subjected him to
IIED when she declined to investigate Melendez’s claims of disability discrimination. Plaintiff
alleges that during the period from about November 2022 through January 2023, he sought
Wilcox’s assistance in addressing ongoing instances of discrimination against him. Fourth Compl.
at ¶¶ 154-55. However, Wilcox determined that there was no indication of discrimination and no
need to conduct an investigation. Id. at ¶ 160. Melendez contends that this decision was reckless
given the significant evidence of potential discrimination and the volume of claims he presented
to CREO. Id. at ¶¶ 160-61. He also contends that Wilcox had a preexisting relationship with
Berger, the Assistant Dean of Students, and that her decision to withhold an investigation was due
to her desire to protect Berger from accusations of disability discrimination. Id. at ¶ 155.
Moreover, Melendez maintains that Wilcox’s behavior was outrageous because:
1) Defendant is the director of the Civil Rights and Equity Office committing
acts of discrimination; 2) Defendant Wilcox took no action to assure Plaintiff
Melendez’s safety; 3) Defendant Wilcox had the ability to resolve this matter
before evolving into a civil law suit; 4) Defendant Wilcox was federally
required to investigate Plaintiff Melendez’s claims of discrimination and failed;
5) Defendant Wilcox’s lack of obligated action directly subjected Plaintiff
Melendez to further discrimination and harm.
Id. at ¶ 156.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 22 of 37

23
A failure to investigate “rarely qualifies as extreme and outrageous[,]” and Wilcox’s
alleged conduct does not qualify as one of these rare occasions. West Alton Marina, 646 F. Supp.
3d at 325. Although Wilcox’s decision not to conduct an investigation may have been insensitive
or indifferent, there is nothing “atrocious” about her conduct, nor can it be deemed “utterly
intolerable in a civilized community.” Id. at 322 (quotations and citations omitted). See also Doe
v. Town of Bourne, No. Civ. A. 02-11363-DPW, 2004 WL 1212075, at *13 (D. Mass. May 28,
2004) (finding that school officials’ failure to report rape of student to police or student’s parents,
or to conduct investigation, “was not, as a matter of law, so extreme and outrageous as to constitute
[IIED].”).5 Even if this court were to infer from the alleged facts that Wilcox “acted with an intent
which [was] tortious” or otherwise unlawful, or “intended to inflict emotional distress,” it would
not be enough to state an IIED claim against her. See Mikell, 158 N.H. at 729 (quotations and
citation omitted). Claim Seven, therefore, should be dismissed.
E. Claims Eight, Eleven, Twelve, and Thirteen: IIED claims arising out of
communications with Melendez
In Claims Eight, Eleven, Twelve, and Thirteen of the Fourth Amended Complaint,
Melendez is seeking to hold various individual defendants liable for IIED based on
communications that they had with him during his medical leave of absence from UNH Law. In
Claim Eight, Melendez alleges that during his medical leave (January-September 2023), members
of CASS sent him a series of emails in which they harassed him for receiving failing grades during
the fall 2022 semester and threatened him with disenrollment from the law school. Fourth Compl.
5 Although the court in Town of Bourne applied Massachusetts law rather than New Hampshire
law, the standard was identical to the standard that applies here. See Town of Bourne, 2004 WL
1212075, at *13 (to prevail on her claim for IIED, plaintiff was required to establish, inter alia,
“that the defendant’s conduct was extreme and outrageous, beyond all possible bounds of decency
and utterly intolerable in a civilized community.” (quoting Tetrault v. Mahoney, Hawkes &
Goldings, 425 Mass. 456, 466, 681 N.E.2d 1189 (1997)).
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 23 of 37

24
at ¶¶ 165, 167, 171. In Claim Eleven, Melendez alleges that on March 27, 2023, Grady improperly
coerced him into interacting with defendants by sending him three separate emails instructing
Melendez to register for his fall 2023 classes. See id. at ¶¶ 189-91. In Claim Twelve, Melendez
alleges that the members of CASS recklessly inflicted emotional distress upon him by mistakenly
including him in a July 5, 2023 email discussion in which they discussed whether to “withhold
services from Plaintiff” and described Melendez in a negative, humiliating, and degrading manner.
See id. ¶¶ 199-211. Finally, in Claim Thirteen, Melendez alleges that Attorney Shapiro and the
law firm of Morgan, Brown should be held liable for IIED based on Attorney Shapiro’s alleged
conduct in advising plaintiff, in an email dated July 13, 2023, that defendants were allowed to
continue to contact Melendez directly even though he previously demanded that they refrain from
doing so. See id. ¶¶ 215-31.
Each of these claims should be dismissed because none of the alleged communications
constitutes extreme and outrageous conduct. As an initial matter, there is nothing “atrocious” or
“utterly intolerable” about the defendants’ efforts to communicate with plaintiff. See West Alton
Marina, 646 F. Supp. 3d at 322 (for conduct to qualify as extreme and outrageous, it “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.” (quotations and
citations omitted)). Although Melendez was on a medical leave of absence when the alleged
communications took place, he was still enrolled as a student at UNH Law and it was not
unreasonable for defendants to reach out to Melendez through email to address any administrative
and academic matters pertaining to his enrollment. Additionally, to the extent Melendez
characterizes the alleged communications as hostile or harassing, his allegations are
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 24 of 37

25
insufficient to support an IIED claim. For such harassment to rise to the level of extreme and
outrageous conduct, “the nature of the harassment must transcend the ‘unprofessional and
confrontational,’ and even the ‘reprehensible,’ exceeding ‘all possible bounds of decency.’”
Brodeur v. Claremont Sch. Dist. , 626 F. Supp. 2d 195, 226 (D.N.H. 2009) (quoting Mikell, 158
N.H. at 730). Melendez has not alleged facts that come close to satisfying this standard. See id.
at 225-26 (finding that 55 year old male teacher’s offensive remarks about teenage female student’s
buttocks were sufficiently severe, pervasive, and offensive to support a claim for harassment under
Title IX, but were “insufficiently extreme and outrageous to support the plaintiffs’ [IIED] claim
as a matter of law.”).
In Claim Eight, Melendez alleges that the CASS defendants’ conduct in contacting him
through a series of emails “was motivated by the intent to cause harm to Plaintiff Melendez for
filing a complaint with CREO[.]” Fourth Compl. at ¶ 170. He also alleges that the CASS
defendants’ actions were outrageous because their emails were not only hostile, humiliating, and
harassing, but also contained “illegitimate threats of disenrollment” from the law school. Id. at ¶
171. As described above, however, “discrimination on the basis of disability, verbal harassment
and retaliation are not, without more, sufficient to support an [IIED] claim[.]” Davis, 2003 WL
21146167, at *3. Similarly, “[l]iability for [IIED] clearly does not extend to mere . . . threats.”
Tessier v. Rockefeller, 162 N.H. 324, 341 (2011) (punctuation in original) (quotations and citation
omitted)). Defendants’ alleged conduct, even when coupled with their positions of authority over
Melendez, do not state a plausible claim for IIED.
With respect to Claim Eleven, in which Melendez seeks to hold Grady liable for IIED based
on three emails he sent to plaintiff instructing him to register for fall 2023 classes, Melendez
alleges that Grady’s actions were outrageous because Grady “was completely indifferent to
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 25 of 37

26
Plaintiff being on a Medical Leave of Absence but still coercing Plaintiff to be promptly involved
in official activities.” Fourth Compl. at ¶ 196. These allegations fall far short of the types of facts
that are necessary to show that a defendant’s conduct is extreme and outrageous. As described
supra, Melendez was still enrolled as a student at UNH Law. Accordingly, there was nothing
improper, much less “atrocious” or “utterly intolerable,” about Grady’s conduct in emailing
Melendez to ensure that he was able to register for the upcoming semester. See West Alton
Marina, 646 F. Supp. 3d at 322.
In support of Claim Twelve, in which Melendez seeks to hold the CASS defendants liable
for IIED based on their conduct in mistakenly including plaintiff in a group email discussion,
Melendez alleges that defendants’ conduct was “malicious” because they described Melendez in
a humiliating and degrading manner. Fourth Compl. at ¶ 210. He also alleges that their conduct
was outrageous because defendants “are administrators that engaged in discussions to discriminate
and retaliate against Plaintiff, and recklessly inflicted emotional damage by unintentionally
including [him] in the conversations.” Id. at ¶ 211. However, malicious conduct is not sufficient
to support an IIED claim. See Mikell, 158 N.H. at 729 (for purposes of an IIED claim, “it is not
enough that a person has acted with an intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct has been characterized by malice.”
(quotations and citation omitted)). Additionally, for the reasons discussed previously, Melendez’s
allegations regarding the CASS defendants’ unintentional inclusion of him in their email
conversation and their negative, humiliating comments about him are inadequate to support a
plausible claim for relief.
In Claim Thirteen, Melendez alleges that Attorney Shapiro’s conduct in advising him that
defendants could continue to contact him directly was outrageous because Attorney Shapiro “is a
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 26 of 37

27
licensed attorney who used her position in attempts to coerce Plaintiff Melendez to endure further
discrimination, and recklessly inflicted emotional damage.” Fourth Compl. at ¶ 226. Once again,
the alleged conduct falls far short of the type of behavior that is “utterly intolerable in a civilized
community.” Mikell, 158 N.H. at 729 (quotations and citation omitted). Therefore,
Claims Eight, Eleven, Twelve and Thirteen all should be dismissed.
F. Claims Fifteen and Seventeen: IIED claim based on alleged due process violations
and failure to provide advocacy
Melendez’s remaining IIED claims are set forth in Claims Fifteen and Seventeen of the
Fourth Amended Complaint. In Claim Fifteen, Melendez alleges that defendants James Dean
(“Dean”), Megan Carpenter (“Carpenter”), Cooper, Berger, Grady, and Sparrow recklessly
inflicted emotional distress on him when they deprived him of a protected property or liberty
interest in his public law school education without affording him adequate due process protections.
Fourth Compl. at ¶ 269. In support of his claim, Melendez alleges that defendants’ conduct was
“outrageous” because “they maintained a significant level of authority and responsibility to assist
Plaintiff Melendez, but intentionally failed to provide [him with] the obligated benefit[.]” Id. at ¶
270. He further alleges that their conduct was “malicious” because they disenrolled him, without
complying with the applicable provisions of UNH Law’s Academic Standing and Review policy,
“while Plaintiff was being monitored for suicide during a Medical Leave of Absence,” thereby
displaying a complete lack of concern for his health and safety. See id. at ¶¶ 271-72.
In Claim Seventeen, Melendez alleges that defendants Dean, Carpenter, and Cooper were
aware of the discrimination Melendez faced during and following the fall 2022 semester, and had
the authority and obligation to protect him from discrimination, yet failed to provide assistance,
instead retaliating against him for filing the instant litigation. Id. at ¶¶ 281-83, 287. Melendez
further claims that defendants’ failure to assist him exposed him to significant discrimination,
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 27 of 37

28
humiliation, and removal from UNH Law, and “recklessly inflict[ed] emotional damage on
Plaintiff[.]” Id. at ¶ 282.
Once again, the court finds that the conduct alleged in this claim falls well short of the
extreme and outrageous conduct necessary to maintain an IIED claim. Compare West Alton
Marina, 646 F. Supp. 3d at 325-26 (allegations that defendants knew about and facilitated sexual
abuse of minors in the workplace were sufficient to satisfy the extreme and outrageous requirement
of an IIED claim) with Banks v. Hall, No. 10-cv-269-JL, 2012 WL 3263607, at *2 (D.N.H. Aug.
9, 2012) (ruling that no rational factfinder could conclude that state troopers’ conduct in kicking,
tasering and siccing a police dog on the plaintiff was sufficient to support a claim for IIED, even
if it amounted to excessive force that violated plaintiff’s Fourth Amendment rights); Davis, 2003
WL 21146167, at *3 (noting that “discrimination on the basis of disability, verbal harassment and
retaliation are not, without more, sufficient to support an [IIED] claim,” but denying motion to
dismiss based on plaintiff’s allegation that defendant interfered with his access to medical care in
retaliation for plaintiff’s complaints of discrimination); Mikell, 158 N.H. at 729 (finding that
teacher’s false accusation of misconduct against a student who subsequently committed suicide
did not “rise[ ] to the level of extreme and outrageous conduct necessary to sustain a claim for
[IIED].”). Even if defendants ignored the applicable provisions of the Academic Standing and
Review policy before disenrolling Melendez from UNH Law, and failed to take affirmative steps
to assist him in obtaining reasonable accommodations, such conduct is not “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as . . . utterly intolerable in a civilized community.” Mikell, 158 N.H. at 729 (quotations
and citation omitted). Nor does Melendez’s conclusory description of defendants’ motivations as
retaliatory and “malicious” suffice to state a plausible IIED claim for the reasons described above.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 28 of 37

29
Because Melendez fails to allege sufficient facts to show that defendants named in Claims Fifteen
and Seventeen engaged in extreme and outrageous conduct, this court recommends that those
claims be dismissed.
III. Claims Six, Nine, Sixteen and Eighteen: Conspiracy
In Claims Six, Nine, Sixteen, and Eighteen, Melendez seeks to hold various defendants
liable for conspiring to intentionally inflict emotional distress on him. Specifically, in Claim Six,
Melendez alleges that the four UNH Law administrators and five UNH Law professors named in
Claim Five “conspired to intentionally inflict emotional damage on Plaintiff Melendez by
wrongfully withholding disability accommodations” from him. Id. at ¶ 145. Similarly, in Claim
Nine, Melendez alleges that the seven members of CASS “conspired to abuse their authority to
intentionally inflict emotional damage on Plaintiff Melendez” by contacting him through a series
of hostile, harassing and threatening emails during the period from January 2023 through
September 2023. Id. at ¶ 174; see also id. at ¶¶ 165, 171. In Claim Sixteen, plaintiff appears to
allege that defendants Dean, Carpenter, Cooper, Berger, Grady, and Sparrow conspired to inflict
emotional distress on him by disenrolling him from UNH Law without providing him with the due
process protections required under UNH Law’s own policies.6 See id. at ¶¶ 275-79. Finally, in
Claim Eighteen, Melendez alleges that defendants Dean, Carpenter, and Cooper conspired to
recklessly inflict emotional distress on him by withholding assistance from him despite their
knowledge of discrimination against him. See id. ¶¶ 290-91; see also id. ¶¶ 281-82. Defendants
6 In Claim Sixteen, Melendez alleges that “Defendants Dean; Carpenter; Cooper; Berger; Grady
and Sparrow conspired to deprive Plaintiff Melendez of Amendment rights and inflicted emotional
damage, specified in Claim 15 (paragraphs 269-273), likewise, violating Conspiracy.” Fourth
Compl. at ¶ 275. Claim Fifteen consists of an IIED claim against the same six defendants based
on their alleged conduct in depriving him of a public education without due process. See id. at ¶¶
269-73. Therefore, Claim Sixteen appears to allege conspiracy to intentionally inflict emotional
distress on Melendez.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 29 of 37

30
move to dismiss these claims on the grounds that Melendez fails to allege adequate facts to satisfy
the elements of a conspiracy claim or otherwise state a plausible claim for relief. Doc. No. 39-1
at 12. This court agrees and recommends that all of these claims be dismissed.
Under New Hampshire law, “[a] civil conspiracy is a combination of two or more persons
by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in
itself unlawful by unlawful means.” Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987)
(quotations and citation omitted). To state a claim for civil conspiracy, plaintiff must allege the
following essential elements:
(1) two or more persons (including corporations); (2) an object to be accomplished
(i.e. an unlawful object to be achieved by lawful or unlawful means or a lawful
object to be achieved by unlawful means); (3) an agreement on the object or course
of action; (4) one or more unlawful overt acts; and (5) damages as the proximate
result thereof.
Id. (emphasis omitted).
Significantly, “[t]here is no such thing in New Hampshire . . . as a civil action based upon
conspiracy alone. For a civil conspiracy to exist, there must be an underlying tort which the alleged
conspirators agreed to commit.” Univ. Sys. of New Hampshire v. U.S. Gypsum Co., 756 F. Supp.
640, 652 (D.N.H. 1991) (internal citations omitted). “Where the court dismisses the underlying
tort because the plaintiff has failed to allege the essential elements, the conspiracy claims must
also be dismissed.” McNeil v. Hugel, No. 93-462-JD, 1994 WL 264200, at *8 (D.N.H. May 16,
1994), aff’d, 77 F.3d 460 (1st Cir. 1996).
In the instant case, each of Melendez’s conspiracy claims is premised upon one of
plaintiff’s underlying claims for IIED. As discussed supra, Melendez fails to allege a plausible
IIED claim against any of the defendants, and therefore, he cannot show that they engaged in a
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 30 of 37

31
conspiracy to commit an underlying tort. Thus, Claims Six, Nine, Sixteen, and Eighteen all should
be dismissed.
IV. Claims Three and Ten: False Light Invasion of Privacy
The Fourth Amended Complaint includes two claims for false light invasion of privacy. In
Claim Three, Melendez focuses on the alleged incident that occurred on October 5, 2022, when
Raust interrupted his lecture to ask whether “Michael’s guest” could answer a question posed by
another student in the class. See Fourth Compl. at ¶¶ 88-105. He alleges in relevant part:
Defendant Raust recklessly and widely implied to the class that an unregistered,
female “guest” of Plaintiff Melendez was attending the class without authorization,
offensively portraying Plaintiff as a student engaged in inappropriate behavior with
a female student during class in a career field [in which] reputation is vital, violating
False Light under NH Common Law.
Id. at ¶ 98.
Similarly, in Count Ten, Melendez claims that Sparrow portrayed him in an offensive
manner, and engaged in the false light invasion of his privacy, by including the following statement
in a number of CASS’s emails to plaintiff: “The content is based on your reflection and thoughts
about your academic performance and what steps you can and will take to improve it.” Id. at ¶¶
178-84. Melendez alleges that “Sparrow’s comment identifies Plaintiff Melendez, then
maliciously and inappropriately implies the Fall 2022 failing grades are due to Plaintiff’s
performance and not due to disability reasons, violating False Light under NH Common Law.” Id.
at ¶ 179.
Defendants argue that these claims should be dismissed because the New Hampshire
Supreme Court has never recognized a cause of action for false light invasion of privacy, and even
if it had, Melendez fails to allege sufficient facts to support his claims. Doc. No. 39-1 at 11.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 31 of 37

32
Because New Hampshire does not recognize this cause of action, Claims Three and Ten must be
dismissed.
At the time defendants filed their motion to dismiss, the New Hampshire Supreme Court
had “never recognized the tort of invasion of privacy – false light” but had never specifically
considered the viability of this claim under New Hampshire law. Richards v. Union Leader Corp.,
No. 2022-0197, 2024 WL 4031395, at *7 (N.H. Sept. 4, 2024). However, just recently, on
September 4, 2024, the New Hampshire Supreme Court was confronted with the question whether
to “recognize the cause of action for false light invasion of privacy as set forth in the Restatement
(Second ) of Torts[.]” Id. at *8. The Court expressly ruled that it was “join[ing] those jurisdictions
that . . . have declined to recognize a common law false light invasion of privacy action.” Id. at
*9. In reaching this conclusion, the state Supreme Court determined that there was “no reason to
recognize a cause of action for false light invasion of privacy when recovery for that tort is
substantially duplicated by torts already established in this state.” Id. at *8. It also noted that the
question “whether to recognize a new cause of action presents a question of policy” and “[m]atters
of public policy are primarily matters for the legislature, not the court.” Id. at *9. Accordingly,
the Court determined that “if a false light invasion of privacy cause of action is to be recognized
in this jurisdiction, it should be crafted by the legislature, not the court.” Id. Because New
Hampshire does not recognize this claim, dismissal is warranted.
V. Claim Fourteen: Alleged Violation of Procedural Due Process
In Claim Fourteen of the Fourth Amended Complaint, Melendez alleges that defendants
Dean, Carpenter, Cooper, Berger, Grady, and Sparrow violated his Fourteenth Amendment right
to procedural due process by disenrolling him from UNH Law “without adhering to the required
minimum process set forth by policy[.]” Fourth Compl. at ¶ 236. “To establish a procedural due
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 32 of 37

33
process violation, a plaintiff must show that (1) [he] was deprived of a protected property interest,
and (2) the procedures attendant to that deprivation were constitutionally inadequate.” Rocket
Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 11 (1st Cir. 2013). In the instant case, there is no
dispute that students possess a legitimate entitlement to a public education that is protected by the
Due Process Clause of the Fourteenth Amendment and that Melendez was deprived of a property
interest in a public law school education. See Doc. No. 39-1 at 15 (citing Haidak v. Univ. of
Massachusetts-Amherst, 933 F.3d 56, 65 (1st Cir. 2019)). At issue is whether Melendez has
plausibly alleged that defendants disenrolled him from UNH Law without adhering “to the
minimum procedures required by that Clause.” Haidak, 933 F.3d at 65 (quoting Goss v. Lopez,
419 U.S. 565, 574 (1975)). This court finds that Melendez’s allegations are sufficient to withstand
defendants’ motion to dismiss with respect to Claim Fourteen.
Melendez alleges that defendants deprived him of his right to procedural due process by
failing to comply with the requirements of UNH Law’s relevant academic policy. Thus, Melenez
alleges that defendants disenrolled him under a policy entitled “Rule VI: Academic Standing and
Review.” Fourth Compl. at ¶ 237. Section D of that policy allegedly requires the Assistant Dean
of Students, defendant Berger, “at the end of each semester, [to] identify any student ineligible
under the standards in Rule VI(A) to continue as a degree candidate[,]”while Section E allegedly
requires the Assistant Dean of Students to:
1) Assure an understanding of the student’s rights and obligations; 2) Assure an
understanding that the student must take the initiative and responsibility both to
assess the causes of deficient performance and to develop a plan to overcome the
deficiency; and 3) Make suggestions for or help arrange such therapy or other
assistance as the student may reasonably request.
Id. at ¶¶ 238, 240. Section F, which is entitled “Submission of Plan,” further provides:
1) The student must present a written plan for overcoming deficiencies to CASS
before the deadline set by CASS; 2) The Assistant Dean for Students shall
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 33 of 37

34
investigate any instance of failure of a student to present a plan and shall advise the
student about the consequences of such failure; [and] 3) The Assistant Dean for
Students shall forward to CASS a statement indicating that such advice was given.
Id.¶ 246. According to Melendez, however, defendant Berger failed to comply with any of her
obligations under Sections E or F prior to Melendez’s disenrollment from the law school. Id. at
¶¶ 241, 247. In particular, defendant Berger allegedly failed to assure that Melendez understood
his rights with respect to the CASS process, his right to obtain disability accommodations, or his
right to have all official proceedings and requirements postponed while he remained on a medical
leave of absence. Id. at ¶ 242. She also allegedly failed to make suggestions to help plaintiff,
arrange for any of the assistance Melendez requested, adequately investigate the factors that
prevented Melendez from presenting a written plan to CASS, or counsel Melendez about the
consequences of failing to complete such a plan. Id. at ¶¶ 245, 248-49, 253. Additionally,
Melendez claims that under the school’s policies, defendants’ failure to suspend the official
proceedings against him and their decision to disenroll him while he was on a medical leave of
absence effectively deprived him of a right to appeal the adverse decision. Id. at ¶ 264.
“Notice and an opportunity to be heard have traditionally and consistently been held to be
the essential requisites of procedural due process.” Haidak, 933 F.3d at 66 (quoting Gorman v.
Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988)). However, when a student is discharged for academic
rather than disciplinary reasons, there is no requirement that he be given a hearing. See Bd. of
Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 90 (1978) (declining to “formalize the
academic dismissal process by requiring a hearing.”); Shah v. Univ. of Texas Sw. Med. Sch., 129
F. Supp. 3d 480, 500 (N.D. Tex. 2015) (“The Due Process Clause does not require that students
dismissed for failure of academic performance be given a hearing.”), aff’d, 668 Fed. Appx. 88 (5th
Cir. 2016). “Nor does due process require that a student dismissed based on poor academic
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 34 of 37

35
performance be afforded a right of appeal.” Shah, 129 F. Supp. 3d at 500. Instead, a student who
has been dismissed from school for failure to meet academic standards is afforded the procedural
due process required by the Fourteenth Amendment where (1) “[t]he school fully inform[s] [the
student] of the faculty’s dissatisfaction with [his academic] progress and the danger that this
pose[s] to timely graduation and continued enrollment[,]” and (2) “[t]he ultimate decision to
dismiss [the student is] careful and deliberate.” Horowitz, 435 U.S. at 85. See also Dean v. Univ.
at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 191 (2d Cir. 2015) (same); Hlavacek
v. Boyle, 665 F.3d 823, 826 (7th Cir. 2011) (for purposes of procedural due process, “it is sufficient
that the student was informed of the nature of the faculty’s dissatisfaction and the ultimate decision
to dismiss was careful and deliberate.” (alteration, quotations and citations omitted)); Ku v. State
of Tennessee, 322 F.3d 431, 436 (6th Cir. 2003) (“In the case of an academic dismissal or
suspension from a state educational institution, when the student has been fully informed of the
faculty’s dissatisfaction with the student’s academic progress and when the decision to dismiss
was careful and deliberate, the Fourteenth Amendment’s procedural due process requirement has
been met.”).
Accepting all of Melendez’s allegations as true and drawing all reasonable inferences in
his favor supports the conclusion that defendants’ motion to dismiss Claim Fourteen should be
denied. Even if this court were to assume that the decision to refer Melendez to CASS was
sufficient to alert him to the law school’s dissatisfaction with his academic performance, and that
the emails he received from CASS were sufficient to notify him of the danger his failing grades
posed to his continued enrollment at UNH Law, the alleged facts belie the conclusion that
defendants’ decision to disenroll Melendez was careful and deliberate. As Melendez alleges,
Berger’s failure to comply with various provisions of the law school’s Academic Standing and
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 35 of 37

36
Review policy deprived plaintiff of the policy’s benefits and protections, including assistance and
advice in navigating the CASS process, the opportunity to postpone the proceedings against him
while he remained on medical leave, and advice regarding a plan to remedy deficiencies in his
performance. These allegations support a reasonable inference that defendants’ decision to
disenroll Melendez from UNH Law was careless. Cf. Sutton v. Stony Brook Univ., No. 21-2055,
2022 WL 4479509, at *5 (2d Cir. Sept. 27, 2022) (finding that university’s deviations from its
normal dismissal procedures did not plausibly render its decision to expel plaintiff from its
graduate teaching program careless where university “provided [plaintiff] with notice of her
deficiencies, the opportunity to correct them, and multiple levels of review before dismissing her
from the program.”). Therefore, this court recommends defendants’ motion to dismiss Claim
Fourteen be denied.7
CONCLUSION
For the foregoing reasons, this court recommends that Defendants’ Motion to Dismiss the
Amended Complaint (Doc. No. 39) be granted in part and denied in part such that the motion be
granted with respect to Claims Two through Thirteen and Fifteen through Eighteen but denied
with respect to Claims One and Fourteen. Any objections to this Report and Recommendation
must be filed within fourteen (14) days of receipt of this notice. The fourteen day period may be
extended upon motion. Failure to file any objection within the specified time waives the right to
appeal the district court’s Order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016). Only those issues raised in the objection(s) to this Report and Recommendation “are subject
7 As part of their motion to dismiss, defendants seek dismissal of Melendez’s claims for retaliation
and violations of the New Hampshire Law Against Discrimination, RSA 354-A. Doc. No. 39-1 at
12-14, 16. However, Melendez states that he is not asserting claims for retaliation under the ADA
or claims under RSA 354-A. Doc. No. 41 at 7-8. Therefore, defendants’ motion to dismiss those
claims should be denied as moot.
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 36 of 37

37
to review in the district court” and any issues “not preserved by such objection are precluded on
appeal.” Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010) (quoting
Keating v. Sec’y of Health & Hum. Servs., 848 F.2d 271, 275 (1st Cir. 1988)).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
November 12, 2024
cc: Michael Melendez, pro se
Counsel of record
Case 1:23-cv-00172-SM-TSM Document 74 Filed 11/12/24 Page 37 of 37