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Cunningham v. University of New Mexico Board of Regents

United States Court of Appeals, Tenth Circuit

August 23, 2013

CHAD CUNNINGHAM, Plaintiff - Appellant,

D.C. No. 1:10-CV-00451-BB-ACT D.N.M.

Before LUCERO and HOLMES, Circuit Judges, and BRIMMER, District Judge.[**]


JEROME A. HOLMES, Circuit Judge.

Chad Cunningham appeals from the district court's dismissal of his claims against the University of New Mexico Board of Regents ("UNM")[1] and the National Board of Medical Examiners ("Board") (collectively "Defendants"). Mr. Cunningham, a second-year medical student, brought claims under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), see 42 U.S.C. §§ 12101–213, and the Rehabilitation Act of 1973, see 29 U.S.C. § 794, as well as state-law breach-of-contract claims, against Defendants after their denial of his requested disability-related accommodation. Defendants filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). The district court granted the motions, dismissing the federal claims with prejudice and declining to exercise supplemental jurisdiction over Mr. Cunningham's state-law claims. We affirm the district court's dismissal of all of Mr. Cunningham's claims.


In 2009, Mr. Cunningham successfully finished his second year of medical school at the University of New Mexico School of Medicine. However, he was placed on academic leave until he passed Step 1 of the United States Medical Licensing Examination. Step 1 is the first step in the three-step examination process administered by the Board. In New Mexico, aspiring doctors must pass all three steps to graduate from medical school and earn their medical licenses. Mr. Cunningham already has attempted Step 1 twice, and if he fails again he will be disqualified from further enrollment at UNM. His difficulties in passing the exam allegedly stem from Irlen Syndrome[2] and the apparent flare-ups of symptoms of the syndrome caused by the standard testing conditions under which Step 1 is administered.

Mr. Cunningham was diagnosed with Irlen Syndrome in 2006 while on a medical leave of absence from his first year of medical school. Although he has always suffered from a reading disability, including severe headaches after prolonged periods of reading, Mr. Cunningham was a "superior student" from grade school through college. Aplt. App. at 8. Mr. Cunningham had to repeat his first year of medical school when he returned in 2007. He then requested, and was denied, accommodation from UNM.[3]

Despite the denial of an accommodation, Mr. Cunningham went back to UNM and successfully completed his first two years of medical school and passed his medical school examinations. Unfortunately, his headaches and other problems, stemming from prolonged periods of reading, persisted. However, he was able to mitigate the effects of his Irlen Syndrome by using prescription colored glasses and medicines to control his blood pressure.

Notwithstanding these adjustments, Mr. Cunningham could not pass Step 1. Mr. Cunningham first attempted Step 1 in early 2009. The bright, fluorescent lighting in the small Step 1 testing room caused Mr. Cunningham's severe headaches to flare up and resulted in him having difficulty reading and concentrating on the test materials. He failed by a narrow margin.

Not to be deterred, Mr. Cunningham applied to take the exam a second time and this time requested an accommodation for his Irlen Syndrome from the Board. To support his request, Mr. Cunningham submitted "several documents including a medical evaluation and diagnosis by a physician and a psychological evaluation by a clinical psychologist that described [his] disability and the accommodation [he] needed" for Step 1. Id. at 11. In May 2009, the Board denied his request based upon its preliminary review. In so denying, the Board cited the complete lack of evidence of any formal accommodations in Mr. Cunningham's past and explained that in order for it to review his request further, he needed to provide "extensive and voluminous" records.[4] Id. at 11–12.

Although the exact timing is unclear from Mr. Cunningham's complaint, in addition to requesting an accommodation from the Board, he made several requests for an accommodation from UNM. And at one point he requested the assistance of the UNM Disability Committee in obtaining the desired accommodation from the Board. None of these efforts was successful.

Nevertheless, Mr. Cunningham continued with his plan to take the test, and took Step 1 for a second time without accommodation. He never provided the requested documentation to the Board, as he allegedly did not have enough time between the Board's denial of his accommodation request and the test date to gather the requested documentation. Once again, Mr. Cunningham failed the test, by essentially the same narrow margin as before.

This second failure left Mr. Cunningham in a quandary: if a medical student fails Step 1 three times, he is disqualified from further medical school enrollment; Mr. Cunningham was placed on academic leave until he passed Step 1 and, by contract with UNM, he is not allowed to work while on academic leave; and, pursuant to UNM's general policy, Mr. Cunningham must complete medical school within six years of his first year, and UNM had informed him that his six years for completing the last two years of his curriculum will expire on October 1, 2012.

Mr. Cunningham filed the instant action against Defendants in May 2010, alleging violations of the ADA and the Rehabilitation Act, and a claim for breach of contract. He also asserted a 42 U.S.C. ยง 1983 cause of action against UNM alone. Mr. Cunningham sought injunctive relief and damages. Both UNM and ...

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