Amatucci v. O'Brien et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. Case No. 15-cv-356-JL
James O’Brien, Town of Wolfeboro,
Dave Owen, Rob Houseman, Stuart
Chase, and Shane Emerson
REPORT AND RECOMMENDATION
In this action, Josephine Amatucci brings claims that arise
from: (1) a series of incidents that took place on May 7, 2014;
and (2) a “No Trespass Order” (“NTO”) issued by the Wolfeboro
Town Manager and Board of Selectmen about two weeks later, in
response to the events of May 7, that prohibits her from
entering two town buildings. Before this magistrate judge for a
Report and Recommendation is “Defendants’ Motion for Judgment on
the Pleadings Based on Res Judicata and Collateral Estoppel”
(Doc. No. 132) seeking judgment on the pleadings as to most, but
not all, of plaintiff’s claims. Plaintiff objects. For the
reasons that follow, defendants’ motion should be granted in
part and denied in part.
Legal Standard
Pursuant to Rule 12(c) of the Federal Rules of Civil
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Procedure, when ruling on a motion for judgment on the
pleadings, the court must “take all well-pleaded facts in the
light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor.” Najas Realty, LLC
v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016)
(citing Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324
(1st Cir. 2008)). Judgment on the pleadings in favor of the
defendant is appropriate “if the complaint fails to state facts
sufficient to establish a ‘claim to relief that is plausible on
its face.’” Gray, 544 F.3d at 324 (quoting Trans-Spec Truck
Serv. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir. 2008)).
Background
The factual basis for plaintiff’s claims has been set out
in narrative form, and in considerable detail, in the
undersigned magistrate judge’s August 5, 2016 Report and
Recommendation (Doc. No. 52) (“August 5 R&R”). On the
assumption that interested readers are familiar with the August
5 R&R, or can refer to it, the court will not provide a detailed
recitation of the facts here. Instead, the court will identify
specific factual allegations, as necessary, in the analysis that
follows.
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Discussion
Relying on the doctrines of res judicata, also known as
claim preclusion, and collateral estoppel, also known as issue
preclusion, defendants move for judgment on the pleadings on
eighteen of plaintiff’s claims, identified in the court’s
October 19, 2016 Order (Doc. No. 111) (“October 19 Order) as
Claims 1(a), 1(d), 2(a)-(c), 3(a), 3(b), 3(d), 5(a), 8(a), 8(b),
11, and 12, and part of a nineteenth claim, identified in the
October 19 Order as Claim 8(d). Specifically, “[t]he only claim
that defendants do not claim [to be] barred by res judicata or
collateral estoppel is [a] claim . . . against Town Manager
[Dave] Owen for alleged defamation . . . and the corresponding
respondeat superior claim . . . against the Town [of Wolfeboro]
related to that alleged defamation.” Defs.’ Mem. of Law (Doc.
No. 132-1), at 5. In this section, the court begins by
outlining the applicable legal principles and then proceed to
evaluate each defendant’s entitlement to judgment on the
pleadings.
A. Res Judicata and Collateral Estoppel
Defendants invoke both res judicata and collateral estoppel
to bar plaintiff from relitigating various claims and issues
that have already been decided against her in: (1) Amatucci v.
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Town of Wolfeboro, No. 212-2015-CV-095 (“Amatucci I”), which was
litigated before Judge Temple in the New Hampshire Superior
Court; (2) Amatucci v. Welman, No. 212-2014-CV-00114 (“Amatucci
II”), which was also litigated before Judge Temple in the
Superior Court; (3) State v. Amatucci, No. 464-2014-CR-00836
(“Amatucci III”), a criminal case prosecuted before Justice
Patten in the District Division of the New Hampshire Circuit
Court; and (4) Amatucci v. Town of Wolfeboro, No. 13-cv-501-PB
(“Amatucci IV”), which was litigated before Judge Barbadoro in
this court. While defendants invoke the doctrines of both res
judicata and collateral doctrines, and rely upon the preclusive
effect of both state-court judgments and a previous judgment
from this court, the only legal principles necessary to rule on
defendants’ motion are those governing the application of res
judicata in a second action in a federal court when the first
action took place in a state court.1
“[F]ederal courts generally have . . . consistently
accorded preclusive effect to issues decided by state courts.”
Allen v. McCurry, 449 U.S. 90, 95 (1980) (citing Montana v.
1In other words, there is no need to describe the doctrine
of collateral estoppel at all, or to explain the application of
either collateral estoppel or res judicata to a case in this
court when the previous judgment was rendered by another federal
court.
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United States, 440 U.S. 147, 153 (1979) and Angel v. Bullington,
330 U.S. 183 (1947)).
The modern version of the [full faith and credit
statute], 28 U.S.C. § 1738, provides that “judicial
proceedings . . . shall have the same full faith and
credit in every court within the United States and its
Territories and Possessions as they have by law or
usage in the courts of such State . . . .” This
statute has long been understood to encompass the
doctrines of res judicata, or “claim preclusion,” and
collateral estoppel, or “issue preclusion.”
San Remo Hotel, L.P. v. City & Cty. of S.F., 545 U.S. 323, 336
(2005) (citation omitted). Thus, with respect to res judicata,
“[a] federal court must give preclusive effect to a state-court
judgment if the state court would.” Universal Ins. Co. v.
Office of Ins. Comm’r, 755 F.3d 34, 37–38 (1st Cir. 2014)
(citing Atwater v. Chester, 730 F.3d 58, 63 n.3 (1st Cir.
2013)).
As for the elements of res judicata under New Hampshire
law, the New Hampshire Supreme Court (“NHSC”) has explained that
[t]he doctrine [of res judicata] prevents parties from
relitigating matters actually litigated and matters
that could have been litigated in the first action, if
three elements are met: “(1) the parties are the same
or are in privity with one another; (2) the same cause
of action was before the court in both instances; and
(3) the first action ended with a final judgment on
the merits.”
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412 S. Broadway Realty, LLC v. Wolters, --- N.H. ---, ---, 147
A.3d 417, 425 (2016) (quoting Merriman Farm, Inc. v. Town of
Surry, 168 N.H. 197, 199 (2015)).
B. Stuart Chase
Plaintiff brings three claims against Stuart Chase. In May
of 2014, Chase was the chief of the Wolfeboro Police Department
(“WPD”). The court considers each of plaintiff’s claims against
Chase in turn.
1. Claim 1(a)
In Claim 1(a), plaintiff asserts that Chase violated her
First Amendment right to petition the government for a redress
of grievances on May 7, 2014, when he threatened to “get her”
and to arrest her, and then caused her to be arrested after a
traffic stop, in retaliation for exercising her First Amendment
right to file an administrative complaint with the WPD alleging
misconduct by various WPD officers. Defendants argue that Claim
1(a) is precluded by three previous judgments, including Judge
Temple’s order of dismissal in Amatucci II. With respect to
Amatucci II, defendants are correct.2
2Thus, the court need not consider defendants’ arguments
that Claim 1(a) is precluded by Amatucci’s conviction in
Amatucci III and by Judge Barbadoro’s order of dismissal in
Amatucci IV.
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Plaintiff’s primary legal objection to defendants’ motion
for judgment on the pleadings is her argument that traditional
rules of preclusion, such as res judicata and collateral
estoppel, are not applicable to claims that have been asserted
through the mechanism of 42 U.S.C. § 1983. While plaintiff
relies on Allen for the proposition that traditional rules of
preclusion do not apply to § 1983 claims, the Allen Court
actually held that the res judicata and collateral estoppel do
apply in § 1983 actions. See Allen, 449 U.S. at 105.
In Amatucci II, Amatucci sued eight defendants, including
Chase.3 In his order granting defendants’ motion to dismiss,
Judge Temple characterized Amatucci’s claims as follows:
Amatucci brings nine counts against the defendants in
her original complaint: (1) a claim that [WPD
Lieutenant Dean] Rondeau violated Amatucci’s due
process rights; (2) a claim of intentional and
negligent infliction of emotional distress; (3) “a
Monell claim” against the Town of Wolfeboro; (4) a
claim of conspiracy to commit fraud and perjury; (5) a
criminal attempt charge; (6) a criminal false
misrepresentation charge; (7) a criminal conspiracy
charge; (8) a criminal threatening charge; and (9) a
false imprisonment charge.
Defs.’ Mem. of Law, Ex. M (Doc. No. 132-14), at 2.
3The other seven defendants in Amatucci II were Shane
Emerson, the New Hampshire Attorney General, Dean Rondeau, the
Town of Wakefield, the Town of Wolfeboro, Richard Tracey, and
Jared Welman.
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The first paragraph of Amatucci’s complaint in Amatucci II
states:
And Chief Chase in a bogus traffic violation, and an
unlawful incarceration on May 7, 2014. In retaliation
against the Plaintiff for demanding an investigation
of criminal acts of police officer James O’Brien, and
Lt. Rondeau.
Defs.’ Mem. of Law, Ex. F (Doc. No. 132-7), at 3. Amatucci then
elaborated:
On May 7, 2014 the Plaintiff went inside the Wolfeboro
police department to complain to police chief Stuart
Chase about the criminal act of Lt. Dean Rondeau, on
August 21, 2013, when he [accused] Plaintiff of a
bogus traffic violation, that she did not commit, and
violated her right under the procedural due process of
the law. Instead of accepting my Complaint and
investigating it, as required by Internal Affairs, the
Chief [lunged] at the Plaintiff and criminally
threatened her warning her that if she ever accuses
any of “his men” of misconduct again he will get her
and come after her and arrest her. Which he did that
same day, when he and another cruiser followed her
with the lights and siren’s [sic] on and accused her
of speeding when she was not speeding, and put her in
jail. IN RETALIATION. The police had no warrant.
They arrested her and incarcerated her and impounded
her car.
Id. at 12-13. Finally, in Count III of her complaint in
Amatucci II, which asserted a claim under Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978), Amatucci said this:
Under the second requirement [for establishing a
Monell claim], the Plaintiff establishes that Police
Chief Stuart Chase in a deliberate act (of a decision-
maker) with policymaking authority proximately caused
her constitutional injuries. When under the custom of
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the Wolfeboro Police Department he refused to
investigate police misconduct, and in retaliation
[for] the Plaintiff’s complaints of police misconduct,
the police chief criminally threatened the Plaintiff,
in the police station threatened her that if she ever
complains about police misconduct again, he will get
her and arrest her on the spot. And that he did get
her when he had her accused of speeding, when she was
not speeding, and had her sent to jail when the law
does not allow for the person to be incarcerated for
such an offense, that a summons is issued.
Id. at 16.
Judge Temple granted the defendants’ motion to dismiss in
Amatucci II. The dismissal was based on the grounds that two
counts in Amatucci’s complaint in that matter, including Count
III, were barred by res judicata; three counts failed to state a
claim on which relief could be granted; and four counts asserted
criminal claims rather than civil claims.
Claim 1(a) here is barred by res judicata. Plaintiff did
not bring a First Amendment claim in Amatucci II, but she could
have, which is sufficient for the purposes of res judicata. See
412 S. Broadway, 147 A.3d at 425. Turning to the first element
of res judicata, identity of the parties, that element is
satisfied by the fact that Amatucci sued Chase in Amatucci II,
and Chase is the defendant on Claim 1(a) in this case. The
second element, which requires that “the same cause of action
was before the court in both instances,” id., is also satisfied.
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In this legal context:
The term cause of action is defined as the right to
recover, regardless of the theory of recovery.
Generally, in determining whether two actions are the
same cause of action for the purpose of applying res
judicata, we consider whether the alleged causes of
action arise out of the same transaction or
occurrence.
412 S. Broadway, 147 A.3d at 425 (internal quotation marks and
citations omitted). Both Amatucci II and Claim 1(a) in this
case arose out of the same specific series of events that
occurred on May 7, 2014, involving Amatucci and Chase. Finally,
as to the third element of res judicata, Amatucci II ended with
a final judgment on the merits.
Because defendants have established all three elements of
res judicata as to Claim 1(a), based on Judge Temple’s order of
dismissal in Amatucci II, Claim 1(a) is barred by res judicata.
Accordingly, Chase is entitled to judgment on the pleadings on
that claim.
2. Claim 1(d)
In Claim 1(d), plaintiff asserts that Chase committed the
state-law tort of assault against her on May 7, 2014, when he
pushed her out of the Wolfeboro Public Safety Building (“PSB”).
Defendants argue that Claim 1(d) is precluded by two previous
judgments, including Judge Temple’s order of dismissal in
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Amatucci II. For the same reasons that apply to Claim 1(a),
Claim 1(d) is barred by res judicata. Accordingly, Chase is
entitled to judgment on the pleadings on Claim 1(d).
3. Claim 11
In Claim 11, plaintiff asserts that Chase committed the
state-law tort of negligent infliction of emotional distress,
under New Hampshire law, by engaging in the acts underlying
Claims 1(a) and 1(d), which caused her to suffer extreme
emotional distress, insomnia, and uncontrollable outbursts and
crying jags. Defendants argue that Claim 11 is precluded by
three previous judgments, including Judge Temple’s order of
dismissal in Amatucci II. For the same reasons that apply to
Claim 1(a), Claim 11 is barred by res judicata. Accordingly,
Chase is entitled to judgment on the pleadings on Claim 11.
C. Robert Houseman
Plaintiff brings four claims against former Wolfeboro Town
Planner Robert Houseman. On May 7, 2014, Houseman was the
Wolfeboro Town Planner and was also serving as the Acting
Wolfeboro Town Manager. The court considers each of plaintiff’s
claims against Houseman in turn.
1. Claim 2(a)
In Claim 2(a), plaintiff asserts that Houseman violated her
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First Amendment right to petition the government for a redress
of grievances on May 7, 2014, when he prevented her from lodging
complaints about misconduct committed by Houseman and Chase.
Defendants argue that Claim 2(a) is precluded by three previous
judgments, including Judge Temple’s order of dismissal in
Amatucci II. With respect to Amatucci II, defendants are
correct.4
In Amatucci II, Amatucci did not sue Houseman, but she did
sue the Town of Wolfeboro (“Town”). As the court has already
pointed out, Amatucci’s original complaint in Amatucci II
asserted a variety of claims arising from several events
involving herself and Chase on May 7, 2014. In a subsequent
filing in Amatucci II, captioned “Addendum to Denial of Motion
to Dismiss / No Res Judicata and Due Process Claim is Still
Alive,” Amatucci stated, concerning Houseman’s actions on May 7:
And the [acting] town Manager [Houseman] retaliated
by allowing Anne Marble to call the police chief soon
after the Plaintiff left her office, where she asked
to see the Selectmen to tell them that the police
chief had threatened her, RETALIATION.
In pursuit of the Code of Silence, in a letter to the
4Because defendants’ argument that Claim 2(a) is precluded
by Judge Temple’s order of dismissal in Amatucci II is
dispositive of Claim 2(a), the court need not consider
defendants’ arguments that the claim is precluded by Amatucci’s
conviction in Amatucci III and by Judge Barbadoro’s order of
dismissal in Amatucci IV.
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Plaintiff, the Town Manager, Dave Owen commended and
supported the actions of Rob Houseman, an employee of
the town when he grabbed the Plaintiff, to stop her
from leaving the town hall, until the police arrived.
That the Town Hall [employees] Houseman, and Brenda
LaPointe and Anne Marble the town managers secretary
called the police department to warn them that she was
heading to the Sheriff’s office. All these incidents
in the town hall on May 7th [] set in motion the
Plaintiffs unlawful arrest and incarceration, were all
in RETALIATION in one way or another, against the
Plaintiff [for] accusing the police of misconduct.
Defs.’ Mem. of Law, Ex. H. (Doc. No. 132-9), at 3-4.
Claim 2(a) is barred by res judicata. While Amatucci did
not raise a First Amendment claim in Amatucci II, she could
have, which is sufficient for the purposes of res judicata. See
412 S. Broadway, 147 A.3d at 425. As to the elements of res
judicata, the court has already stated that Amatucci II resulted
in a final judgment on the merits, which satisfies the third
element of res judicata. As for the identity of the cause of
action in Amatucci II and the cause of action underlying Claim
2(a), the facts that Amatucci alleged in her complaint addendum
(Doc. No. 132-9), demonstrate that the cause of action before
the state court in Amatucci II included the interactions between
Houseman and Amatucci at the Wolfeboro Town Hall on May 7, 2014.
To satisfy the “in privity” element of res judicata, the
parties in the two actions must be “the same or . . . in privity
with one another.” 412 S. Broadway, 147 A.3d at 425. Town
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officials sued for actions they took on behalf of a town sued in
a prior action, are in privity with the town even if the
individual town official was not sued in the prior action. See
Sutliffe v. Epping School District, 627 F. Supp. 2d 41 (D.N.H.
2008), aff’d, 584 F.3d 314 (1st Cir. 2009). Accordingly, the
Town of Wolfeboro, which was a defendant in Amatucci II, and
Houseman, who was employed by the Town at the time of the events
giving rise to Amatucci’s claims against him, qualify as “same
parties” for the purposes of res judicata.
Because defendants have established all three elements of
claim preclusion as to Claim 2(a), based on Judge Temple’s order
of dismissal in Amatucci II, Claim 2(a) is barred by res
judicata. Accordingly, Houseman is entitled to judgment on the
pleadings on that claim.
2. Claim 2(b)
In Claim 2(b), plaintiff asserts that Houseman violated her
Fourth Amendment rights on May 7, 2014, when he grabbed her arm
and confined her to a room in the Wolfeboro Town Hall, and
impeded her efforts to leave Town Hall, without probable cause
or a warrant permitting him to do so. Defendants argue that
Claim 2(b) is precluded by two previous judgments, including
Judge Temple’s order of dismissal in Amatucci II. For the same
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reasons that apply to Claim 2(a), Claim 2(b) is barred by res
judicata. Accordingly, Houseman is entitled to judgment on the
pleadings on Claim 2(b).
3. Claim 2(c)
In Claim 2(c), plaintiff asserts that Houseman committed
the state-law tort of assault and also committed the state-law
tort of false imprisonment when he grabbed her arm and forced
her to remain in a room in Town Hall, on May 7, 2014, thereby
impeding her efforts to leave the building. Defendants argue
that Claim 2(c) is precluded by two previous judgments,
including Judge Temple’s order of dismissal in Amatucci II. For
the same reasons that apply to Claim 2(a), Claim 2(c) is barred
by res judicata. Accordingly, Houseman is entitled to judgment
on the pleadings on Claim 2(c).
D. Dave Owen
Plaintiff brings six claims against Dave Owen. In May of
2014, Owen was the Wolfeboro Town Manager. Defendants argue
that Owen is entitled to judgment on the pleadings on five of
plaintiff’s six claims against him.5 The court considers each of
those five claims in turn.
5Defendants do not move for judgment on the pleadings on
Claim 7, in which plaintiff asserts that Owen defamed her by
making two statements to the Granite State News newspaper.
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1. Claim 3(a)
In Claim 3(a), plaintiff asserts that Owen violated her
First Amendment associational right to enter and remain on
public property, and also violated her First Amendment right to
petition the government for a redress of grievances, by issuing
an NTO prohibiting her from entering the Wolfeboro Town Hall and
Public Safety Building, in retaliation for her complaints
against both Town and WPD employees. Defendants argue that
Claim 3(a) is precluded by Judge Temple’s order of dismissal in
Amatucci I. They are correct.
In Amatucci I, Amatucci sued the Town of Wolfeboro, in an
action captioned “Motion to Remove ‘No Trespass Order.’” Defs.’
Mem. of Law, Ex. U (Doc. No. 132-22), at 2. Amatucci attached a
letter, dated May 23, 2014, to the complaint she filed in
Amatucci I. That letter states, in pertinent part:
In light of the unfortunate incidents at the Public
Safety Building and Town Hall on Wednesday, May 7,
2014, and in light of several other incidents during
the past several years, I am hereby ordering you, on
behalf of the Town and until further written notice,
not to enter the Public Safety Building at 251 South
Main Street in Wolfeboro or the Town Hall at 84 South
Main Street in Wolfeboro. . . .
This order should not be construed to prohibit you
from attending any publically [sic] noticed meeting,
such as a meeting of the Board of Selectmen, Planning
Board or Police Commission.
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. . . .
Should you violate this notice not to enter, as set
forth above, the Town will prosecute you for criminal
trespass under RSA 635:2 and under any other
applicable statute, to the full extent provided by
law.
This order is issued pursuant to the Town Manager’s
and the Board of Selectmen’s authority to regulate the
use of Town property under RSA 37:5, RSA 41:11-a and
any other applicable statute. It is also issued
pursuant to the authority of the Town Manager and the
Board of Selectmen to manage and supervise the affairs
of the Town to ensure the safety and well-being of its
employees.
Id. at 23-24. The letter was signed by Owen along with the five
members of the Wolfeboro Board of Selectmen.
Ultimately, Judge Temple granted the defendant’s motion to
dismiss Amatucci’s action. Specifically, he ruled that “[t]he
plaintiff’s ‘Motion to Remove “No Trespass Order” Under Due
Process of the Law’ is dismissed with prejudice.” Defs.’ Mem.
of Law, Ex. Z (Doc. No. 132-27), at 2 .
Claim 3(a) is barred by res judicata. While plaintiff does
not appear to have brought a First Amendment claim in Amatucci
I, she could have, which is sufficient for the purposes of res
judicata. See 412 S. Broadway, 147 A.3d at 425. Turning to the
first element of res judicata, identity of the parties,
plaintiff is now suing Owen for his actions as an agent for a
principal, the Town, that successfully defended a prior suit,
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Amatucci I, that was based on the conduct at issue in Claim
3(a). That places Owen in privity with the Town for purposes of
res judicata. See Sutliffe, 627 F. Supp. 2d at 51. Amatucci I
and Claim 3(a) in this case arose out of the same occurrence,
i.e., the issuance of the NTO. That satisfies the second
element of res judicata. Finally, Judge Temple dismissed the
claims in Amatucci I with prejudice, which was a final judgment
on the merits. See Moulton-Garland v. Cabletron Sys., Inc., 143
N.H. 540, 542 (1999) (“[a] judgment entered ‘with prejudice’
constitutes a judgment on the merits of a matter, even if it
resulted from a violation of a procedural rule”) (citing Roberts
v. GMC, 140 N.H. 723, 727 (1996) and Foster v. Bedell, 136 N.H.
728, 730 (1993)).
Because defendants have satisfied all three elements of
claim preclusion as to Claim 3(a), based on Judge Temple’s order
of dismissal in Amatucci I, Claim 3(a) is barred by res
judicata. Accordingly, Owen is entitled to judgment on the
pleadings on that claim.
2. Claim 3(b)
In Claim 3(b), plaintiff asserts that Owen violated her
First Amendment associational right to enter and remain on
public property, and also violated her Fourteenth Amendment due
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process rights, by issuing the NTO without providing her any
pre-deprivation process. Defendants argue that Claim 3(b) is
precluded by Judge Temple’s order of dismissal in Amatucci I.
For the same reasons that apply to Claim 3(a), Claim 3(b) is
barred by res judicata. Accordingly, Owen is entitled to
judgment on the pleadings on Claim 3(b).
3. Claim 3(d)
In Claim 3(d), plaintiff asserts that Owen committed the
state-law tort of defamation by issuing the NTO, thereby
communicating to the employees of the Town Hall and PSB that she
had engaged in misconduct serious enough to warrant her
exclusion from public property, causing damage to her
reputation. Defendants argue that Claim 3(d) is precluded by
Judge Temple’s order of dismissal in Amatucci I. For the same
reasons that apply to Claim 3(a), Claim 3(d) is barred by res
judicata. Accordingly, Owen is entitled to judgment on the
pleadings on Claim 3(d).
E. Shane Emerson and James O’Brien
Plaintiff brings two claims against Shane Emerson and James
O’Brien, both of whom were officers of the WPD on May 7, 2014.
The court considers each of those claims in turn.
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1. Claim 5(a)
In Claim 5(a), plaintiff asserts that Officers Emerson and
O’Brien violated her First Amendment right to petition the
government for a redress of grievances when they pulled her over
and arrested her, in retaliation for her prior complaints about
Town and WPD officials. Defendants argue that Claim 5(a) is
precluded by three previous judgments, including Judge Temple’s
order of dismissal in Amatucci II. Because Emerson and O’Brien
are not similarly situated for the purposes of res judicata, the
court discusses the claims against them separately.
a. Emerson
Plaintiff did not bring a First Amendment claim in Amatucci
II, but she could have, which is sufficient for the purposes of
res judicata. See 412 S. Broadway, 147 A.3d at 425. Amatucci
sued Emerson in Amatucci II, and he is a defendant on Claim 5(a)
in this case. That satisfies the first element of res judicata.
In Amatucci II, Amatucci litigated claims that arose from her
May 7, 2014, arrest, which is the occurrence on which Claim 5(a)
is based. That satisfies the second element of res judicata.
And Amatucci II resulted in a final judgment on the merits,
which satisfies the third element of res judicata.
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Because defendants have established all three elements of
claim preclusion as to Claim 5(a), to the extent that claim is
asserted against Emerson, based on Judge Temple’s order of
dismissal in Amatucci II, Claim 5(a) as to Emerson, is barred by
res judicata.6 Accordingly, Emerson is entitled to judgment on
the pleadings on Claim 5(a).
b. O’Brien
Unlike Emerson, O’Brien was not a defendant in Amatucci II,
Amatucci III, or Amatucci IV, which are the three actions that
resulted in judgments that have, or might have, a preclusive
effect on Claim 5(a). Defendants acknowledge as much, but make
the following argument regarding the first element of res
judicata:
Even though O’Brien and Houseman were not sued in the
prior cases based on the May 7, 2014 events, the Town
and the Police Department, if not Chase and Emerson,
all had the same interest in defeating Ms. Amatucci’s
far-fetched conspiracy theory. The Town or Police
Department’s liability could have depended in part on
the roles of O’Brien and Houseman. That might also be
true for Emerson (who wouldn’t be part of the alleged
conspiracy unless O’Brien was part of it and pulled
Emerson into it) and perhaps true for the Chief
because if O’Brien and Houseman had not acted, Ms.
6Because defendants’ argument that Claim 5(a) is precluded
by Judge Temple’s order of dismissal in Amatucci II is
dispositive of Claim 5(a), the court need not consider
defendants’ arguments that the claim is precluded by Amatucci’s
conviction in Amatucci III and by Judge Barbadoro’s order of
dismissal in Amatucci IV.
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Amatucci might have gotten away instead of having the
sheriff’s deputies stop her before she could reach the
sheriff’s department. In other words, if anyone in
Ms. Amatucci’s conspiracy chain defeated her claims,
the chain of events would break and the entire claim
would fall apart. Thus, it is fair to conclude that
O’Brien and Houseman, who were not previously sued in
the two past May 7 event lawsuits, were in privity
with those who were sued.
Defs.’ Mem. of Law (Doc. No 132-1), at 21.
Under the circumstances of this case, res judicata is an
affirmative defense, and defendants “bear[] the burden of
proving that [it] appl[ies].” Gray v. Kelly, 161 N.H. 160, 164
(2010) (citing McNair v. McNair, 151 N.H. 343, 354 (2004); In re
Zachary G., 159 N.H. 146, 151 (2009)). The privity-by-
conspiracy theory on which defendants rely is broader than the
theory of privity articulated in Sutliffe, but defendants offer
no legal authority for the theory. Because defendants bear the
burden of proving that res judicata applies, and have identified
no legal authority for their theory of privity, the court is not
inclined to embrace it. Accordingly, O’Brien is not entitled to
judgment on the pleadings on Claim 5(a) on grounds of res
judicata. Defendants’ motion for judgment on the pleadings
should be denied as to Claim 5(a), as asserted against O’Brien,
without prejudice to defendants’ ability to move to dismiss
Claim 5(a) under Rule 12(b)(6), or on any other appropriate
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basis.
2. Claim 12
In Claim 12, plaintiff asserts that Officers Emerson and
O’Brien committed the state-law tort of negligent infliction of
emotional distress by engaging in the acts underlying Claim
5(a), which caused her to suffer extreme emotional distress,
insomnia, and uncontrollable outbursts and crying jags.
Defendants argue that Claim 12 is precluded by three previous
judgments, including Judge Temple’s order of dismissal in
Amatucci II.
a. Emerson
For the same reasons that apply to Claim 5(a), Claim 12, as
to Emerson, is precluded by Judge Temple’s order of dismissal in
Amatucci II. Accordingly, Emerson is entitled to judgment on
the pleadings on Claim 12.
b. O’Brien
For the same reasons that apply to Claim 5(a), O’Brien is
not entitled to judgment on the pleadings on Claim 12 on grounds
of res judicata.
F. Town of Wolfeboro
Plaintiff brings four claims against the Town. The court
considers each of those claims in turn.
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1. Claim 8(a)
In Claim 8(a), plaintiff asserts that the Town violated her
First Amendment associational right to enter and remain on
public property, and also violated her Fourteenth Amendment due
process rights, by issuing the NTO without providing her any
pre-privation process. Defendants argue that Claim 8(a) is
precluded by Judge Temple’s order of dismissal in Amatucci I.
They are correct.
While plaintiff does not appear to have brought a First
Amendment claim in Amatucci I, she could have, which is
sufficient for the purposes of res judicata. See 412 S.
Broadway, 147 A.3d at 425. Amatucci sued the Town in Amatucci
I, and the Town is the defendant on Claim 8(a) in this case.
That satisfies the first element of res judicata. In Amatucci
I, Amatucci litigated claims that arose from the issuance of the
NTO, which is the occurrence on which Claim 8(a) is based. That
satisfies the second element of res judicata. Finally, Amatucci
I resulted in a final judgment on the merits, which satisfies
the third element of res judicata.
Because defendants have established all three elements of
claim preclusion as to Claim 8(a), based on Judge Temple’s order
of dismissal in Amatucci I, Claim 8(a) is barred by res
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judicata. Accordingly, the Town is entitled to judgment on the
pleadings on that claim.
2. Claim 8(b)
In Claim 8(b), plaintiff asserts that the Town violated her
First Amendment right to petition the government for a redress
of grievances by issuing the NTO and by refusing to investigate
her complaints against Town and WPD employees, in retaliation
for her previous complaints against Town and WPD employees.
Defendants argue that Claim 8(b) is precluded by Judge Temple’s
order of dismissal in Amatucci I. They are correct.
While plaintiff does not appear to have brought a First
Amendment claim in Amatucci I, she could have, which is
sufficient for the purposes of res judicata. See 412 S.
Broadway, 147 A.3d at 425. Amatucci sued the Town in Amatucci
I, and the Town is the defendant on Claim 8(b) in this case.
That satisfies the first element of res judicata. With regard
to the second element, Amatucci I involved claims that arose
from both the issuance of the NTO and the Town’s alleged failure
to investigate her complaints. That the claims in Amatucci I
arose from the issuance of the NTO is self-evident; Amatucci I
was initiated by a pleading captioned “Motion to Remove ‘No
Trespass Order’ Under Due Process of the Law.” Defs.’ Mem. of
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Law, Ex. U (Doc. No 132-22), at 2. As for the part of Claim
8(b) that is premised upon the Town’s alleged failure to
investigate, the court notes that Amatucci supported her
complaint in Amatucci I with a letter from Owen in which he
wrote:
Relative to the request you made to me at the Board of
Selectmen’s meeting on May 21, 2014, where you asked
that I undertake an investigation of the incidents
that occurred on May 7th which resulted in your arrest,
I decline to undertake any such investigation.
Id. at 25. Moreover, the complaint in Amatucci I asked for the
following relief:
I would like an OUTSIDE investigator, as allowed in
the town Ordinance, to go to every employee in the
town hall and question whether they think I am
abusive, and to get statements from Houseman, LaPointe
and Cathy regarding the May 7th incident.
Id. at 11. In short, both Amatucci I and Claim 8(b) arose from
the same occurrences, which satisfies the second element of res
judicata. And Amatucci I resulted in a final judgment on the
merits, which satisfies the third element of res judicata.
Because defendants have established all three elements of
claim preclusion as to Claim 8(b), based on Judge Temple’s order
of dismissal in Amatucci I, Claim 8(b) is barred by res
judicata. Accordingly, the Town is entitled to judgment on the
pleadings on that claim.
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3. Claim 8(d)
In Claim 8(d), plaintiff asserts that the Town is liable
for the state-law claims asserted against any Town or WPD
employee in this action, i.e., Claims 1(d), 2(c), 3(d), 7, 11,
and 12, under the theory of respondeat superior. Defendants
argue that the Town is entitled to judgment on the pleadings on
Claim 8(d), except to the extent that Claim 8(d) is based upon
the alleged defamation underlying Claim 7. The court agrees in
part. Because Chase, Houseman, Owen, and Emerson are entitled
to judgment on the pleadings on: plaintiff’s state-law claims
against them, the Town is necessarily entitled to judgment on
the pleadings on those portions of Claim 8(d) that are based on
the conduct alleged in Claims 1(d), 2(c), 3(d), and 11; and the
portion of Claim 8(d) that is based upon the conduct by Emerson
that is alleged in Claim 12. However, because O’Brien is not
entitled to judgment on the pleadings on Claim 12, the Town is
not entitled to judgment on the pleadings on the portion of
Claim 8(d) that is based on the conduct by him that is alleged
in Claim 12.
Conclusion
For the reasons described above, defendants’ motion for
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judgment on the pleadings (Doc. No. 132), should be granted as
to Claims 1(a), 2(a)-(c), 3(a)-(b), 3(d), 5(a) as to Emerson,
11, and 12 as to Emerson. As well, defendants’ motion should be
granted as to Claim 8(d) except to the extent that claim is
based on the conduct by O’Brien that is alleged in Claim 12.
Regarding Claims 5(a) and 12 as to O’Brien, and the portion of
Claim 8(d) that is based upon the conduct by O’Brien that is
alleged in Claim 12, defendants’ motion should be denied,
without prejudice to defendants’ ability to file a motion to
dismiss those claims on any appropriate basis. If the district
judge adopts this Report and Recommendation, plaintiff’s case
moving forward will consist of the following claims: Claim 5(a),
as to O’Brien; Claim 7; the portion of Claim 8(d) that is based
on the conduct alleged in Claim 7; the portion of Claim 8(d)
that is based on the conduct by O’Brien that is alleged in Claim
12; and Claim 12, as to O’Brien.
Notwithstanding the Orders (Doc. Nos. 123, 144) issued by
the court on October 25, 2016 and December 7, 2016, any party to
this case may file an objection to this Report and
Recommendation. Any objection to this Report and Recommendation
must be filed within 14 days of receipt of this notice. See
Fed. R. Civ. P. 72(b)(2). Failure to file an objection within
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the specified time waives the right to appeal the district
court’s order. See United States v. De Jesús-Viera, 655 F.3d
52, 57 (1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins.
Co., 617 F.3d 554, 564 (1st Cir. 2010) (only issues fairly
raised by objections to magistrate judge’s report are subject to
review by district court; issues not preserved by such objection
are precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 18, 2017
cc: Josephine Amatucci, pro se
Garry R. Lane, Esq.
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