Amatucci v. Mullen et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. 	Case No. 21-cv-237-LM
Attorney Daniel Mullen;
Joseph Laplante, individually,
as a private person; and
Ransmeier & Spellman
REPORT AND RECOMMENDATION
Plaintiff Josephine Amatucci, proceeding pro se and in
forma pauperis, has filed a complaint (Doc. No. 1/#5245 #5239
#51191) and a number of filings which the Court construes as
complaint addenda (Doc. Nos. 5/#5398, 6/#5398, 7/#5386, 8/#5419,
9/#5430, 10/#5435, 15/#5579, 16/#5585, 18/#5630), alleging that
the defendants have violated her rights under state and federal
law. 	Also before the Court are Mrs. Amatucci’s motions for
summary judgment and judgment as a matter of law (Doc. Nos.
12/#5556, 13/#5559, 14/#5556, 17/#5639, 19/#5642, 20/#5677,
21/#5701, 22/#5724, 23/#5726).
The complaint and complaint addenda are before the
undersigned Magistrate Judge for preliminary review pursuant to
1 As a courtesy to Mrs. Amatucci, the Court includes the
four-digit number she has given to her filings along with the
docket number assigned to each filing by the Court.
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 1 of 12

2
28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2). 	The motions are before
the undersigned for a recommendation as to disposition. 	The
factual and legal assertions in those motions are considered to
be complaint addenda for purposes of preliminary review.
Preliminary Review Standard
The court conducts a preliminary review of complaints filed
by pro se litigants proceeding in forma pauperis. 	See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). 	In considering whether a pro se
complaint states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	The court then determines whether, stripped of legal
conclusions, and with all reasonable inferences construed in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Claims may be dismissed, sua sponte, if the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2).
Background
This action arises out of a case previously litigated in
this Court, Amatucci v. O’Brien, No. 17-cv-237-JL (D.N.H.)
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 2 of 12

3
(“Case 17-237”), in which Mrs. Amatucci asserted that employees
of the Town of Wolfeboro and members of the Carroll County
Sheriff’s Department violated her rights by engaging in certain
conduct relating to her arrest after a traffic stop on May 7,
2014 and the criminal proceedings that followed.
Attorney Daniel J. Mullen of the law firm Ransmeier &
Spellman PC (“Ransmeier”) appeared on behalf of three defendants
in Case 17-237: the Town of Wolfeboro, Shane Emerson, and Stuart
Chase. 	See Case 17-237 (ECF Nos. 62, 86). 	United States
District Judge Joseph Laplante presided over Case 17-237.
On September 24, 2018, in Case 17-237, Judge Laplante held
a hearing on the parties’ cross motions for summary judgment,
after which he entered the following Order:
After today’s oral argument the plaintiff’s motion for
summary judgment ([ECF No.] 123) is denied. 	Her prior
motion for summary judgment ([ECF No.] 109) was
withdrawn. 	The defendants’ motion for summary
judgment ([ECF No.] 138) is granted. 	Written order to
follow. 	The court will accept no filing from either
party prior to the issuance of that order. 	The final
pretrial conference and trial shall be removed from
the court calendar.
Case 17-237, Sept. 24, 2018 Order. 	On December 27, 2018, Judge
Laplante issued his written order on the parties’ motions for
summary judgment. 	See id. (ECF No. 190). 	Mrs. Amatucci
appealed that decision to the First Circuit, which affirmed
Judge Laplante’s ruling. 	See Amatucci v. Chase, No. 19-1109
(1st Cir. Jan. 10, 2020); Case 17-237 (ECF No. 215). 	Mrs.
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 3 of 12

4
Amatucci also filed multiple post-judgment motions in Case 17-
237, all of which were denied.
Claims
In this action, Mrs. Amatucci asserts the following claims:
1. 	Attorney Mullen and Judge Laplante conspired with one
another, in Case 17-237, to commit fraud, to grant the
defendants’ motion for summary judgment, and to violate
Mrs. Amatucci’s civil rights, to deny Mrs. Amatucci damages
in that case, when Judge Laplante and Attorney Mullen knew
or should have known that the defendants’ summary judgment
motion relied on false information.
2. 	Judge Laplante’s actions in Case 17-237 violated
Judicial Canons.
3. 	Judge Laplante improperly failed to recuse himself in
Case 17-237.
4. 	Judge Laplante’s and Attorney Mullen’s conduct in Case
17-237 violated federal and state law, as that conduct
amounted to: fraud, legal malpractice, abuse of process,
corruption, federal criminal conduct, and interference with
interstate commerce.
5. 	Mrs. Amatucci is entitled to injunctive relief, as
follows:
a. 	An Order directing the Town of Wolfeboro to
vacate Mrs. Amatucci’s June 2015 state court
conviction for disobeying a police officer, which was
prosecuted by Timothy Morgan, a Wolfeboro employee and
policymaker for the Town, rendering the Town liable
for Mrs. Amatucci’s improper conviction under Monell
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978);
b. 	An Order directing the New Hampshire Circuit
Court and/or New Hampshire Circuit Court Judge Patten
to vacate Mrs. Amatucci’s June 2015 state court
conviction for disobeying a police officer;
c. 	An Order directing the New Hampshire Department
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 4 of 12

5
of Safety to remove Mrs. Amatucci’s June 2015
conviction for disobeying a police officer from her
criminal record;
d. 	An Order directing the New Hampshire Superior
Court and/or New Hampshire Superior Court Judge
Ignatious to vacate Judge Ignatious’s Order declaring
Mrs. Amatucci to be a vexatious litigant under state
law; and
e. 	An Order directing Judge Laplante, or another
judge, to vacate the judgment against Mrs. Amatucci in
Case 17-237, because Judge Laplante’s ruling granting
the defendants’ motion for summary judgment in Case
17-237 relied on false factual assertions, and
therefore was made in excess of Judge Laplante’s
jurisdiction, as Judge Laplante’s jurisdiction does
not extend to making decisions which are based on
false factual assertions.
Discussion
I. 	Conspiracy (Claim 1)
Mrs. Amatucci has alleged that Attorney Mullen conspired
with Judge Laplante to violate her civil rights, to the extent
they conspired to grant Attorney Mullen’s motion for summary
judgment. 	A claim alleging a conspiracy to violate an
individual’s civil rights arises under 42 U.S.C. § 1985(2). 	A
conspiracy to violate civil rights is
commonly defined [as] “a combination of two or more
persons acting in concert to commit an unlawful act,
or to commit a lawful act by unlawful means, the
principal element of which is an agreement between the
parties to inflict a wrong against or injury upon
another, and an overt act that results in damages.”
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 5 of 12

6
Sanchez v. Foley, 972 F.3d 1, 11 (1st Cir. 2020) (quoting Estate
of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008)).
Although “pro se complaints are to be read generously,
allegations of conspiracy must nevertheless be supported by
material facts, not merely conclusory statements.” 	Slotnick v.
Garfinkle, 632 F.2d 163, 165 (1st Cir. 1980) (per curiam)
(citation omitted).
Stripped of conclusory statements and speculation about the
existence of the conspiracy Mrs. Amatucci alleges here, the
allegations in her complaint documents fail to state any facts
supporting a claim that Attorney Mullen and Judge Laplante
entered into an agreement to improperly grant Attorney Mullen’s
summary judgment motion in Case 17-237 or to otherwise violate
her rights in that case. 	Accordingly, Mrs. Amatucci has failed
to state a civil rights conspiracy claim upon which relief might
be granted.
II. 	Attorney Mullen and Ransmeier (Claim 4)
A. 	Federal Constitutional Claims - Private Actor
Mrs. Amatucci asserts that Attorney Mullen violated her
federal civil rights under 42 U.S.C. § 1983. 	It is well-
settled, however, that such a claim cannot be asserted against a
private individual. 	See Georgia v. McCollum, 505 U.S. 42, 53
(1992) (citing Polk Cty. v. Dodson, 454 U.S. 312 (1981)). 	A
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 6 of 12

7
private party is deemed to be a state actor for purposes of
§ 1983 only under limited circumstances, which are not present
here. 	See generally Blum v. Yaretsky, 457 U.S. 991, 1004-05
(1982) (describing circumstances under which a private actor can
be deemed to be a state actor for purposes of § 1983). 	Attorney
Mullen is a private party, not a government actor.
To the extent Mrs. Amatucci may be relying on her
allegations of a conspiracy between Attorney Mullen and Judge
Laplante to demonstrate that Attorney Mullen is a government
actor, she has failed to establish a conspiracy claim in this
case. 	Moreover, Judge Laplante is a federal judge, and
therefore, even if Mrs. Amatucci had asserted facts to support a
conspiracy between Attorney Mullen and Judge Laplante, such a
conspiracy would not render any action by Attorney Mullen as
having occurred under color of state law. 	Accordingly, Mrs.
Amatucci has failed to allege any claim under 42 U.S.C. § 1983
upon which relief might be granted against Attorney Mullen based
on a violation of her federal constitutional rights.
B. 	State Law Claims & Respondeat Superior
Mrs. Amatucci has failed to state any federal claim upon
which relief might be granted against either Attorney Mullen or
Ransmeier. 	Pursuant to 28 U.S.C. § 1367(c), the District Judge
should decline to exercise supplemental jurisdiction over Mrs.
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 7 of 12

8
Amatucci’s state law claims against those defendants. 	The
District Judge should dismiss Mrs. Amatucci’s state law claims
against those defendants without prejudice to her ability to
bring those matters in a suit in state court.
C. 	Criminal Conduct
Mrs. Amatucci alleges that the defendants’ behavior in this
matter amounts to criminal conduct. 	In general, a plaintiff
does not have standing to bring claims of criminal misconduct in
a civil case. 	See Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) (“[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”).
Accordingly, Mrs. Amatucci has failed to state a claim upon
which relief might be granted based on the alleged criminal
conduct of any defendant.
III. Judge Laplante
A. 	Ability to Rule
In this matter, the undersigned Magistrate Judge and the
presiding District Judge are called upon to consider claims
asserted against another judge of this Court. 	The court has
considered whether, because a colleague is a named defendant,
recusal is appropriate. 	It is not. 	A fully informed, rational
observer would not have reason to question the court’s
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 8 of 12

9
impartiality in this matter. 	See Swan v. Barbadoro, 520 F.3d
24, 26 (1st Cir. 2008) (“patently frivolous claims presented
leave no room for any rational person to imagine that any bias
could underlie” a decision).
B. 	Absolute Judicial Immunity
Mrs. Amatucci’s claims against Judge Laplante are barred by
the doctrine of absolute judicial immunity. 	See Zenon v.
Guzman, 924 F.3d 611, 616 (1st Cir. 2019). 	“[W]hen a judge
carries out traditional adjudicatory functions, he or she has
absolute immunity for those actions.” 	Id. 	Absolute judicial
immunity “shield[s] judges even when their actions are
malicious, corrupt, mistaken, or taken in bad faith; its purpose
not to buffer bad judges but for the benefit of the public,
whose interest it is that the judges should be at liberty to
exercise their functions with independence and without fear of
consequences.” 	Id. 	To determine whether a judge is entitled to
absolute judicial immunity, the Court “assesse[s] whether
the judge's act was one normally performed by a judge, and
whether the parties were dealing with the judge in his or her
judicial capacity.” 	Id. (citing Stump v. Sparkman, 435 U.S.
349, 362 (1978).
It matters not that Mrs. Amatucci has taken pains in this
matter to assert claims against “Joseph Laplante, individually,
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 9 of 12

10
as a private person,” Doc. No. 1, at 1, based on her belief that
Judge Laplante’s challenged actions in Case 17-237 were taken
without jurisdiction, and thus outside of his judicial capacity.
It is the circumstances underlying Mrs. Amatucci’s claims
against Judge Laplante that determine whether he was acting in
his capacity as a judge or in his capacity as a private citizen
when engaging in the alleged conduct underlying the claims in
this case, notwithstanding Mrs. Amatucci’s belief to the
contrary or her reference to Judge Laplante as a “private
person” in the caption of her complaint.
Mrs. Amatucci’s claims against Judge Laplante in this case
arise from his rulings and the manner in which he presided over
a hearing in Case 17-237. 	Mrs. Amatucci claims that Judge
Laplante’s actions in Case 17-237 were taken outside of his
jurisdiction, as they were based on fraudulent and false
allegations made by the defendants during the summary judgment
proceedings in that matter. 	She is mistaken. 	Judge Laplante
was “carr[ying] out [] traditional adjudicatory function[s],”
Zenon, 924 F.3d at 616, when he held a hearing and issued his
rulings on the parties’ cross motions for summary judgment
motion in Case 17-237. 	A judge does not lose jurisdiction, and
a judge’s decisions do not fall outside the scope of
adjudicatory actions, even if those decisions are wrong or are
made on an improper or corrupt basis.
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 10 of 12

11
Accordingly, even assuming, for purposes of preliminary
review, that Mrs. Amatucci’s factual allegations are true, they
do not strip Judge Laplante of absolute judicial immunity. 	Mrs.
Amatucci, therefore, has no recourse against Judge Laplante in
this Court with regard to the claims she has asserted against
him.
IV. 	Claims for Injunctive Relief (Claim 6)
Mrs. Amatucci has not, in any of her filings in this case,
demonstrated that there is any proper basis for this Court to
issue the orders listed in Claim 6. 	Because Mrs. Amatucci has
failed to state any federal claim upon which relief might be
granted in this matter, and the District Judge should decline to
exercise supplemental jurisdiction over her state law claims,
she cannot obtain injunctive relief on any of the claims she has
asserted here. 	Accordingly, the District Judge should deny Mrs.
Amatucci’s requests for the orders listed in Claim 6.
V. 	Motions for Summary Judgment
Mrs. Amatucci has filed six motions for summary judgment,
two addenda to those motions, and one motion for judgment as a
matter of law in this case. 	Because the Court finds that the
claims upon which Mrs. Amatucci seeks judgment should be
dismissed, the District Judge should deny those motions.
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 11 of 12

12
Conclusion
For the foregoing reasons, the District Judge should
dismiss this action in its entirety, with prejudice, except that
her state law claims should be dismissed without prejudice. 	The
District Judge should also deny Mrs. Amatucci’s motions for
summary judgment and for judgment as a matter of law.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	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 to review in the
district court.’” 	Id. 	Additionally, any issues “‘not preserved
by such objection are precluded on appeal.’” 	Id. (citations
omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 1, 2022
cc: 	Josephine Amatucci, pro se
Case 1:21-cv-00237-LM Document 25 Filed 07/01/22 Page 12 of 12