Amatucci v. Young et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. 	Case No. 18-cv-1227-SM
Richard M. Young, Jr. et al.
REPORT AND RECOMMENDATION
In this civil rights action, plaintiff Josephine Amatucci,
appearing pro se, claims that she was a victim of excessive
force when she was forcibly removed from the Carroll County
Attorney’s Office in Ossipee, New Hampshire in 2018. Mrs.
Amatucci has moved for summary judgment (Doc. No. 259/8270)1,
to which the defendants have objected (Doc. Nos. 262, 263), to
which Mrs. Amatucci has replied (Doc. No. 263/8295). Pursuant
to LR 72.1, Mrs. Amatucci’s motion has been referred to the
undersigned Magistrate Judge for a report and recommendation.
For the reasons that follow, the district judge should deny the
motion.
1 Mrs. Amatucci identifies most of the documents she files
with a four-digit number. 	The court uses that number, as well
as the court’s docket number, to assist Mrs. Amatucci in
document identification.
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Factual Background2
On September 7, 2018, Mrs. Amatucci went to the Carroll
County Attorney's Office (“CCAO”), which is open to the public,
to file a complaint against Wolfeboro Police Department Chief
Dean Rondeau for threatening her and accusing her of a crime
she did not commit. 	As there was no receptionist at the CCAO,
Mrs. Amatucci rang a bell for service, announced the purpose of
her visit, and stated that she was in fear for her safety as a
result of Chief Rondeau's action. In response, Mrs. Amatucci
was told to either send a letter or make an appointment to file
her complaint. Mrs. Amatucci alleges that she then asked to
make an appointment, and when she received no response, rang
the bell again.
Mrs. Amatucci states that Melissa Banks, a senior
paralegal in the CCAO contacted the Carroll County Sheriff’s
Department (“CCSD”) and “ordered” CCSD Chief Deputy Richard
Young to remove Mrs. Amatucci from the CCAO lobby. Shortly
thereafter, CCSD Chief Deputy Young and CCSD Sgt. Michael
Bedley arrived at the CCAO and asked Mrs. Amatucci to leave the
office. Mrs. Amatucci alleges she told the deputies she was
there to file a complaint, that she had a concern for her
safety, and that she did not want to leave without filing her
2 The facts set forth herein are gleaned from Mrs.
Amatucci’s filings in this case.
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complaint. Mrs. Amatucci told the deputies she wanted to wait
there until someone came out of the CCAO to speak with her.
Mrs. Amatucci states that while she was waiting for someone to
come out and take her complaint, she unsuccessfully attempted
to call the CCAO on her cell phone to try to schedule an
appointment to file her complaint. Mrs. Amatucci alleges that
no one at the CCAO told her to leave that office.
At the time the deputies arrived, Mrs. Amatucci asserts
that she already mistrusted and feared Chief Deputy Young, as
she felt that he had previously lied to her, and had assisted
another law enforcement officer in violating her rights. Mrs.
Amatucci alleges that Chief Deputy Young approached her, and
she rang the bell to the CCAO again and pleaded for someone to
come out and “get this criminal away from me.” 	Compl. (Doc.
No. 1/4273).
Mrs. Amatucci, who was eighty years old on September 7,
2018, claims that Chief Deputy Young then grabbed her right
arm, and squeezed and twisted it repeatedly, causing her to
scream in pain more than once, and escorted Mrs. Amatucci out
of the CCAO. Mrs. Amatucci alleges that while Chief Deputy
Young was squeezing and twisting her arm, and while she was
screaming in pain, Sgt. Bedley did nothing to stop or protect
her from Chief Deputy Young's use of physical force, although
he had the opportunity to do so. Mrs. Amatucci states that she
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was not violent or aggressive during her encounter with the
deputies on September 7, 2018, she had not committed any crime,
and she did not pose a threat to them or anyone else at any
time.
Mrs. Amatucci alleges that the force used against her
caused her arm to turn red and purple and form a large lump.
Mrs. Amatucci went to see her primary care physician
immediately after the incident. Mrs. Amatucci alleges that,
upon seeing her arm, a nurse said she should go to the
emergency room, and personally accompanied her there, where her
arm was x-rayed, and she was given a sling and prescription
medication. Mrs. Amatucci asserts that the pain in her arm was
severe enough to cost her several nights’ sleep, and that the
bruising on her arm worsened over the next several days, and
resulted in a permanent scar.
Legal Standard
A. 	Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that the
court “shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” A factual
dispute, therefore, precludes summary judgment if it is
“material” and “genuine.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). 	The party moving for summary judgment
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“bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). However, the moving party's
burden “may be discharged by showing . . . that there is an
absence of evidence to support the nonmoving party's case.” Id.
at 325 (internal quotation marks omitted). Therefore, summary
judgment is mandated “after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
burden of proof at trial.” Id. at 322.
B. Excessive Force
To prevail on her excessive force claim, Mrs. Amatucci
must demonstrate that the defendants employed a level of
force against her that was not objectively reasonable when
viewed in light of the facts and circumstances facing them
at the time, without regard to their subjective intent or
motivation. See, e.g., Graham v. Connor, 490 U.S. 386, 396–
97 (1989); Alexis v. McDonald's Rest. of Mass., Inc., 67
F.3d 341, 352 (1st Cir. 1995). See Parker v. Gerrish, 547
F.3d at 8–9 (reasonableness of force used to effect seizure
“is objective, to be determined “in light of the facts and
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circumstances confronting [the officers], without regard to
their underlying intent or motivation”) (cleaned up);
Graham, 490 U.S. at 397 (“officer's evil intentions will
not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer's good
intentions make an objectively unreasonable use of force
constitutional”); Gutierrez v. Mass. Bay Transp. Auth., 772
N.E.2d 552, 559 (Mass. 2002) (observing that it is
immaterial in section 1983 excessive force claim “whether
the police officer had a subjective intent to harm the
plaintiff”) (citing Graham, 490 U.S. at 397).
Discussion
Other than repeating her already-rejected claim that
she is entitled to judgment as a matter of law and that the
court should proceed with a trial on damages only, Mrs.
Amatucci offers only her conclusory assertion that “nothing
. . . justifies the use of force by Young . . .” and that
she “did not pose any threat to the officer’s safety or the
public . . .” 	Pltf. Resp. (Doc. No 263/8295) at 3-4. As
has repeatedly been explained to Mrs. Amatucci, however,
see, e.g., Order (Doc. No. 225) at 18, the defendants have
the right to challenge Mrs. Amatucci’s version of events
through discovery. 	As the court noted in its prior Order
(Doc. No. 225) and in its Order on the Defendants’ Motions
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to Dismiss issued this date, Mrs. Amatucci has refused to
cooperate in discovery. 	The court cannot recommend
granting summary judgment against the defendants in the
absence of discovery. 	See Celotex Corp., 477 U.S. at 323
(noting summary judgment must follow “adequate time for
discovery”); see also Sept. 30, 2021, Order (Doc. No. 134)
(denying Mrs. Amatucci’s pre-discovery motions for summary
judgment).
Conclusion
Based on the foregoing, the district judge should deny Ms.
Amatucci’s motion for summary judgment (Doc. No. 259). 	If the
court adopts this recommendation, it is further recommended that
the court deny, for the same reasons as those set forth in this
report and recommendation, Mrs. Amatucci’s Motion for Hearing
(Doc. No. 268/9001) and Motion for Expeditious Trial for Jury
Damages (Doc. No. 269/8303).
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
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file any objections 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
April 12, 2024
cc: 	Josephine Amatucci, pro se
Counsel of Record
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