Amatucci v. O'Brien et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. Civil No. 15-cv-356-JL
James O’Brien et al.
REPORT AND RECOMMENDATION
Before the court is plaintiff Josephine Amatucci’s filing
(Doc. No. 135) in which she seeks to add a malicious prosecution
claim against Wolfeboro Police Chief Stuart Chase to this
action. Defendants object ((Doc. No. 137). The filing is
before the court for preliminary review pursuant to LR
4.3(d)(2).
Standard
Federal Rule of Civil Procedure 15(a)(2) provides that a
party who is no longer able to amend their complaint as of right
may amend only with the court’s leave, and that “[t]he court
should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “[A] district court may deny leave to amend
when the request is characterized by undue delay, bad faith,
futility, or the absence of due diligence on the movant’s part.”
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Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir.
2013) (internal quotation marks and citations omitted).
Discussion
In her proposed amendment to the complaint in this case,
Amatucci asserts a malicious prosecution claim against Chief
Chase under the Fourth Amendment and state tort law, for his
role in initiating a prosecution against her on the charges for
which she was arrested on May 7, 2014. As this court stated
when Amatucci previously attempted to assert a malicious
prosecution arising out of her May 7, 2014 arrest, “a plaintiff
may bring a suit under § 1983 . . . [for a Fourth Amendment
malicious prosecution claim] if [s]he can establish that: ‘the
defendant (1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal
proceedings terminated in plaintiff’s favor.’” Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013) (citation omitted).
This court has already found that the record in this case
demonstrates that there was probable cause for Amatucci’s May 7,
2014 arrest, and for the criminal prosecution related to that
arrest. Further, the criminal proceedings in this case did not
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terminate in Amatucci’s favor. Accordingly, Amatucci cannot
assert a malicious prosecution claim against Chief Chase
relating to the May 7, 2014 incident upon which relief may be
granted. Accordingly, Amatucci’s request to amend her complaint
to include such a charge is futile and should be denied.
Conclusion
For the foregoing reasons, the court recommends that the
district judge deny plaintiff’s proposed complaint amendment
(Doc. No. 135). 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). Failure to file
objections within the specified time waives the right to appeal
the district court’s order. See Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 2, 2016
cc: Josephine Amatucci, pro se
Garry R. Lane, Esq.
Mark H. Puffer, Esq.
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