Macua v. NH, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Agnes Macua
v. Civil No. 22-cv-186-LM
Empire Beauty School,
Piconics, Inc., and
Linbar Property Management
REPORT AND RECOMMENDATION
Pro se plaintiff Agnes Macua filed an amended complaint
(Doc. No. 28) against defendants Empire Beauty School
(“Empire”), Piconics, Inc., and Linbar Property Management.1
Empire now moves to dismiss (Doc. No. 34) under Federal Rule of
Civil Procedure 12(b)(6).2 Ms. Macua filed no objection.
Empire’s motion to dismiss is before the court for a
recommendation as to disposition. See Order, July 24, 2023.
For reasons explained below, Ms. Macua fails to state a claim
upon which relief can be granted as to Empire, and therefore,
the court recommends that the district judge grant Empire’s
motion to dismiss.
1 On December 14, 2022, the court issued an order (Doc. No.
25) granting defendants’ motions to dismiss and directing Ms.
Macua to file an amended complaint.
2 Empire requested a hearing on its motion. Upon review of
Empire’s briefing, the court determined that a hearing is
unnecessary. See LR 7.1(d) (“Except as otherwise provided, the
court shall decide motions without oral argument.”).
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Applicable Legal Standard
When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept as true all well-pleaded facts set out in the
complaint and indulge all reasonable inferences in favor of the
pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010).
Although the complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief,” Fed. R. Civ. P. 8(a)(2), it must allege each of the
essential elements of a viable cause of action and “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) (citation and internal punctuation
omitted).
Because Ms. Macua is proceeding pro se, the court construes
her amended complaint liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (internal citations omitted) (“a
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers”). Pro se status, however, “does not insulate a party
from complying with procedural and substantive law. Even under
a liberal construction, the complaint must adequately allege the
elements of a claim with the requisite supporting facts.”
Chiras v. Associated Credit Servs., Inc., No. 12-10871-TSH, 2012
WL 3025093, at *1 n.1 (D. Mass. July 23, 2012) (quoting Ahmed v.
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Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (internal citation
and quotation marks omitted)).
Background
In September 2020, Ms. Macua enrolled as a student in
Empire’s two-year cosmetology course. Am. Compl. (Doc. No. 28,
¶¶ 15-16). According to Ms. Macua, Empire students and staff
engaged in harassment and bullying directed at her. Id. ¶¶ 17-
18. Ms. Macua provides no details regarding the subject matter
of the alleged harassment and bullying or the conduct that she
perceived to be harassment and bullying. On February 24, 2022,
Ms. Macua complained to the Board of Cosmetology about the
alleged harassment and bullying. Id. Then, on February 28,
2022, Ms. Macua claims that Empire students and staff, in
addition to other individuals unaffiliated with Empire,
“ambushed” her at her place of employment, and exposed her
“private information via live streaming on Facebook as a form of
public shaming to humiliate and embarrass her.” Id. ¶ 20. Ms.
Macua contends that Empire breached its implied promise to
ensure student safety by failing to address Ms. Macua’s
complaints about bullying.
Ms. Macua asserts that these incidents forced her to drop
out of Empire’s cosmetology course prior to graduating. Id. ¶
42. Ms. Macua seeks reinstatement to a cosmetology school,
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transfer of her Empire credits, and reimbursement from Empire
for her outstanding student loan balance of $22,000.00.
In support of her claims, Ms. Macua appended documents to
her amended complaint, which appear to contain email and text
messages with Empire staff and students. In these messages, Ms.
Macua notifies Empire staff of “[h]igh school drama,” requests
times to make up classes, requests to be removed from a student
group chat, and requests to have no further communication from
Empire. See (Doc. No. 28-1, at 13-22). In response, Empire
represents that it will look into the “drama,” identifies times
for make-up classes, and honors her requests for removal from
the group chat and no further contact. Id.
Discussion
Liberally construed, Ms. Macua’s amended complaint asserts
claims against Empire under 42 U.S.C. § 1983, 42 U.S.C. § 1981,
and state law claims, including breach of contract, breach of
the implied covenant of good faith and fair dealing, and false
light invasion of privacy. Empire moves to dismiss Ms. Macua’s
amended complaint under Rule 12(b)(6) and argues that she fails
to state any claim for relief against it.
I. Section 1983
Section 1983 provides a private cause of action “against
any person who, while acting under color of state law, deprives
another (or causes another to be deprived) of rights secured
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either by the Constitution or by federal law.” Cruz-Arce v.
Mgmt. Admin. Servs. Corp., 19 F.4th 538, 543 (1st Cir. 2021)
(citing 42 U.S.C. § 1983). Thus, an essential element of a
section 1983 claim is that the defendant acts under the color of
state law such that its actions are “fairly attributable to
the State.” Estades-Negroni v. CPC Hosp. San Juan Capestrano,
412 F.3d 1, 4 (1st Cir. 2005) (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982)).
Section 1983 does not provide a cause of action for purely
private conduct that allegedly impacts a plaintiff’s federal
constitutional rights, and with certain exceptions, private
actors generally cannot be held liable for violations of an
individual’s federal constitutional rights. See Georgia v.
McCollum, 505 U.S. 42, 53 (1992) (citing Polk Cty. v. Dodson,
454 U.S. 312 (1981)); see also Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296-97 (2001)
(collecting cases on various circumstances in which an
ostensibly private actor has been treated as a state actor for
purposes of section 1983). Although courts employ an
individualized analysis, the First Circuit enumerated “three
general ways in which a private party may become a state actor
within the purview of section 1983.” Cruz-Arce, 19 F.4th at
544.
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First, a private party may be considered a state actor
if it assumes a public function which, by tradition,
is exclusively reserved to the state (the public
function test). Second, a private party may be
considered a state actor if its conduct is coerced or
significantly encouraged by the state (the state
compulsion test). Third, a private party may be
considered a state actor if it and the state have
entered into so symbiotic a relationship that they
have become joint participants in the challenged
conduct (the nexus/joint action test).
Id. (internal citations omitted). While a plaintiff is not
required to specify which test applies, the allegations in the
complaint “must comprise a factual predicate sufficient to
render it plausible that one of these tests can be satisfied.”
Id. “If the challenged conduct cannot be classified as state
action, a section 1983 claim necessarily fails.” Id. at 543.
Empire argues that Ms. Macua fails to allege any basis for
Empire, as a private entity, to be treated as a state actor.
The court agrees. The allegations regarding Empire’s alleged
role in disseminating Ms. Macua’s private information make no
reference to any state actor or state action. Am. Compl. (Doc.
No. 28, ¶ 20). Further, there are no allegations from which the
court could infer that Empire should be considered a state
actor. For example, there are no allegations that Empire
assumed a public function or engaged in joint action with the
state. The only reasonable inference to draw from Ms. Macua’s
allegations is that, to the extent Empire engaged in any conduct
that would have violated her federal constitutional rights,
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Empire acted in its capacity as a private entity. Accordingly,
where Empire engaged in purely private conduct, it is not a
state actor, and therefore, it cannot be liable under section
1983. For these reasons, Ms. Macua’s section 1983 claim against
Empire should be dismissed.
II. Section 1981
Section 1981 “affords relief when racial discrimination
precludes a plaintiff from entering a contractual relationship
or when racial discrimination impairs a plaintiff’s existing
contractual relationship.” Alston v. Spiegel, 988 F.3d 564, 572
(1st Cir. 2021). “To state a discrimination claim under section
1981, a plaintiff must show that [she] is a member of a racial
minority, that the defendant discriminated against [her] on the
basis of [her] race, and that the discrimination implicated the
right to make and enforce contracts.” Id.
As argued by Empire, Ms. Macua’s amended complaint contains
no allegations that Empire discriminated against her on the
basis of her race. In fact, aside from alleging that she is “a
person of color” and a “citizen born in Africa,” Am. Compl.
(Doc. No. 28, ¶ 1), Ms. Macua makes no other reference to her
race in connection with Empire’s alleged conduct. The amended
complaint also contains no allegations of racial animus by
Empire. Accordingly, given the absence of allegations that
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Empire discriminated against her on the basis of her race, Ms.
Macua’s section 1981 claim against Empire should be dismissed.
III. Breach of Contract
To state a claim for breach of contract, a plaintiff “must
allege sufficient facts to show (1) that a valid, binding
contract existed between the parties, and (2) that defendant
breached the terms of the contract.” Estes v. ECMC Group, Inc.,
565 F. Supp. 3d 289, 305 (D.N.H. 2020) (quotation and brackets
omitted). “A breach of contract occurs when there is a failure
without legal excuse, to perform any promise which forms the
whole or part of a contract.” Id. (quoting Poland v. Twomey,
156 N.H. 412, 415, 937 A.2d 934 (2007)).
Under New Hampshire law, “the relationship between a
student and his or her college is contractual in nature.”
Anderson v. Trs. of Dartmouth Coll., No. 19-cv-109-SM, 2020 WL
7129968, at *10 (D.N.H. Dec. 4, 2020) (citing Gamble v. Univ.
Sys. of New Hampshire, 136 N.H. 9, 12–13, 610 A.2d 357 (1992)).
“Courts have concluded that student handbooks and other
materials may set out the terms of a contract between a
university and its students.” Doe v. Trs. of Dartmouth Coll.,
615 F. Supp. 3d 47, 60 (D.N.H. 2022) (citing Nierenberg v. Trs.
of Dartmouth Coll., No. 2152016CV00259, 2017 WL 10259668, at *2
(N.H. Super. Ct. July 7, 2017)).
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“The proper interpretation of a contract is a question of
law for the court, and the contract's proper meaning will be
determined based on the meaning that would be attached to it by
reasonable persons.” Anderson, 2020 WL 7129968, at *10 (citing
Gamble, 136 N.H. at 13). In the context of the relationship
between a student and a postsecondary school, the court must
“examine the language of the contract under the basic tenets of
contract law” and also consider “the parties’ unique
relationship . . . .” Id. (citing Gamble, 136 N.H. at 13).
Here, Ms. Macua’s amended complaint contains no allegations
setting forth the terms of any contract between her and Empire.
For example, there are no student handbook policies or other
materials containing contract terms in connection with her
enrollment as a student in Empire’s cosmetology course. In
fact, Ms. Macua does not allege that Empire violated the terms
of any valid binding contract to which they were both parties.
Rather, she claims that Empire breached an implied duty to
ensure her safety as a student by not responding to unspecified
reports of bullying.
Ms. Macua provides no authority for the proposition that
New Hampshire law imposes an implied contractual duty on
postsecondary schools to ensure the safety of their students.
Further, given the lack of detail surrounding the substance of
the alleged instances of bullying or harassment, the court could
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not make findings as to whether such a duty is applicable to the
circumstances of this case. Although New Hampshire courts have
not addressed this precise issue, other courts have held that in
the context of a school’s enrollment contract with a student,
there is no implied promise to provide a “safe learning
environment.” See Zelnick v. Morristown-Beard Sch., 137 A.3d
560, 567 (N.J. Super. Ct. 2015); Cf. Doe v. Trs. of Boston
Coll., 892 F.3d 67, 94 (1st Cir. 2018) (holding, in the context
of a negligence claim arising from defendant’s alleged failure
to conduct a disciplinary process with due care, that defendant
“did not owe [plaintiffs] any additional independent duty
outside of their existing contractual relationship.”); Thomas v.
Regents Univ. of Cal., 315 Cal. Rptr. 3d 623, 655 (Cal. App. 5th
2023) (holding, in the context of a negligence claim, that the
university did not have a duty to protect its students from non-
physical harm based on the facts of the case and the absence of
any authority for the imposition of such a duty). Accordingly,
as to her breach of contract claim, Ms. Macua fails to state a
claim for relief against Empire.
IV. Breach of the Implied Covenant of Good Faith and Fair
Dealing
In every agreement, “there is an implied covenant that the
parties will act in good faith and fairly with one another.”
Anderson, 2020 WL 7129968, at *13 (quoting Skinny Pancake-
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Hanover, LLC v. Crotix, 172 N.H. 372, 379, 214 A.3d 166 (2019)).
This implied covenant includes a series of doctrines, which
“fall into three categories: (1) contract formation; (2)
termination of at-will employment; and (3) limitation of
discretion in contractual performance.” Id. (quoting Livingston
v. 18 Mile Point Drive, 158 N.H. 619, 624 (2009)). Where Ms.
Macua’s allegations center solely on Empire’s purported failure
to ensure her safety, her claim could only fall within the
“comparatively narrow” third category regarding performance.
Livington, 158 N.H. at 624. The purpose of the third category
is to “prohibit behavior inconsistent with the parties’ agreed-
upon common purpose and justified expectations, as well as with
common standards of decency, fairness, and reasonableness.” Id.
(internal citation omitted).
Given the absence of allegations concerning the terms of
any contractual agreement between Empire and Ms. Macua, the
court cannot discern any allegations of conduct by Empire that
exceeds any agreed-upon common purpose or standards of decency,
fairness, and reasonableness. Moreover, the breach alleged by
Ms. Macua concerns an implied duty to ensure her safety, as
opposed to allegations that Empire acted unreasonably in
performing a specified contractual duty. In sum, Ms. Macua
fails to state a claim for breach of the implied covenant of
good faith and fair dealing against Empire.
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V. False Light Invasion of Privacy
To state a claim for false light invasion of privacy, a
plaintiff must allege that: “(1) the defendant ‘gives publicity
to a matter concerning [the plaintiff] that places [the
plaintiff] before the public in a false light,’ (2) that false
light ‘would be highly offensive to a reasonable person,’ and
(3) the defendant ‘had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and
the false light in which the other would be placed.’” Lewis v.
Abramson, No. 22-cv-126-PB, 2023 WL 3322009, at *7 (D.N.H. May
9, 2023) (quoting Restatement (Second) of Torts § 652 (1977)).
An essential element of the claim is that “the matter published
concerning the plaintiff is not true.” Id. (quotation omitted).
Ms. Macua fails to allege that the private information
purportedly publicized by any student or staff member of Empire
was false. Rather, she only claims that Empire students and
staff participated in disclosing her private information. Am.
Compl. (Doc. No. 28, ¶¶ 2, 20). The absence of allegations
regarding the falsity of the disclosed information is fatal to
her claim. Accordingly, Ms. Macua fails to state a claim for
false light invasion of privacy against Empire.
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Conclusion
For the foregoing reasons, the district judge should grant
Empire’s motion to dismiss (Doc. No. 34) for failure to state a
claim. 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. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file specific written objections to the Report and
Recommendation 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).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 29, 2024
cc: Agnes Macua, pro se
Counsel of Record
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