UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John Collins

v. Civil No. 09-cv-78-LM

University of New Hampshire 

and Bruce L. Mallory

O R D E R

Defendant University of New Hampshire (“UNH”) has moved for

judgment on Count III of the First Amended Complaint (document

no. 21), in which plaintiff asserts a due process claim under 42

U.S.C. § 1983. UNH argues that it is not a “person” within the

scope of § 1983, citing Senu-Oke v. Jackson State Univer., 521 F.

Supp. 2d 331 (S.D. Miss. 2007), Nagm v. Univ. of Tex., No. Civ.A.

H-04-2132, 2005 WL 1185801 (S.D. Tex. May 11, 2005), and Hill v.

Bd. of Trs. of Mich. State, 182 F. Supp. 2d 621 (W.D. Mich.

2001). None of the authority on which UNH relies is persuasive

or controlling, and the relationships between the state agencies

and the states involved in those cases are distinguishable from

UNH’s position here. 

Whether or not UNH is so closely connected to and part of

the New Hampshire state government to be considered the state for

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purposes of avoiding § 1983 liability depends on a variety of

factors that focus on the form, functions and powers of the state

entity. See Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200,

1204 (1st Cir. 1993) (listing factors to assess to determine a

state entity’s autonomy from the state). The question of whether

the New Hampshire state university system is the “alter ego” of

the state was thoroughly analyzed and decided in Univ. of N.H. v.

U.S. Gypsum, Corp., 756 F. Supp. 640 (D.N.H. 1991). Although the

issue there was whether the state university system could be

considered a person for purposes of satisfying this court’s

diversity jurisdiction, the court was guided by Eleventh

Amendment Immunity law governing when a state agency is to be

treated as an arm of the state. See id. at 644. Because of the

state university system’s financial and managerial independence

from the state government, in particular its board of trustees’

autonomy and broad authority, the court concluded that the

University System of New Hampshire “is a governmental corporation

of sufficient autonomy to escape designation as an alter ego of

the state.” Id. at 647 (denying motion to dismiss).1

1As plaintiff correctly points out, the determination that

UNH is a “person” was tacitly approved just three years later

when this court analyzed a § 1983 suit against UNH filed by one

of its professors with no discussion of UNH’s potential immunity. 

2

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While Univ. of N.H. vs. U.S. Gypsum Corp. is nearly 20 years

old, it remains good law. A recent First Circuit case holding

that a state college is an “alter ego” of the state and therefore

immune from suit under § 1983 was, like the authority UNH cites

in support of its motion here, based on another state’s law. See

e.g. Fantini v. Salem State College, 557 F.3d 22, 33 (1st Cir.

2009) (dismissing claim against state college in Massachusetts

because it is not a person for purposes of § 1983). Although it

is well-settled that neither a state nor any of its agencies can

be sued under § 1983, see Brown v. Newberger 291 F.3d 89, 92 (1st

Cir. 2002) (citing Will v. Mich., Dept. of State Police, 491 U.S.

58, 71 (1989) and Seminole Trib of Fla. v. Florida, 517 U.S. 44,

55-56 (1996)), the critical difference here is that UNH, as a

“body politic and corporate,” N.H. Rev. Stat. Ann. § 187-A:1, is

not considered a state agency or otherwise an “arm” or “alter

ego” of the state of New Hampshire. See Univ. of N.H., 756 F.

Supp. at 644-47; see also Iravedra v. Public Bldg. Auth., 196 F.

Supp. 2d 104, 106-07 (D.P.R. 2002) (citing authority that the

analysis turns on whether the state-related agency is juridically

distinct from the state); cf. Wang v. N.H. Bd. of Regist. in

See Silva v. Univ. of N.H., 888 F. Supp. 293, 312-15 (D.N.H.

1994). 

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Med., 55 F.3d 698, 700-01 (1st Cir. 1995) (dismissing § 1983

claim for money damages against state medical licensing board

members acting in their official capacities).

Based on this law and the generous standard of review

applicable to motions under Rule 12(c), see Citibank Global

Markets, Inc., v. Rodriguez Santana, 573 F.3d 17, 23 (1st Cir.

2009) (citing authority), I find that plaintiff has alleged facts

that render his due process claims plausible and, therefore, deny

UNH’s motion for judgment on the pleadings with respect to count

III (document no. 21).

SO ORDERED.

______________________________

Landya B. McCafferty

United States Magistrate Judge

Date: August 25, 2010 

cc: Marth van Oot, Esq.

Paul McEachern, Esq.

John L. Arnold, Esq.

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