Amatucci v. Chase et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. Civil No. 17-cv-237-JL
Stuart Chase et al.1
REPORT AND RECOMMENDATION
Before the court for preliminary review is Josephine
Amatucci’s complaint (Doc. No. 1) and complaint addenda (Doc.
Nos. 6, 8, 12, 14-17, 19, 20, 23), asserting violations of her
rights under the federal constitution and state law. See 28
U.S.C. § 1915(e)(2); LR 4.3(d)(2). Also before the court for
consideration, and a recommendation as to disposition, are the
following motions filed by plaintiff
 Motion for Summary Judgment (Doc. No. 2);
 Motion for “Her Right Under Part 1, Article 14 of the
Constitution” (Doc. No. 13);
 Motion for Relief from Judgment Under Rule 60 (Doc. No.
21); and
 Motion for Hearing to Redress Grievances (Doc. No. 22).
1In the caption of the complaint (Doc. No. 1), Mrs. Amatucci
names the following defendants to this action: the Wolfeboro
Police Department (“WPD”), former WPD Chief Stuart Chase, the
Town of Wolfeboro (“Town”), Town employee Dave Owen, and former
Town employee Rob Houseman. In the body of her complaint and
the complaint addenda, Mrs. Amatucci also identifies former WPD
Officer James O’Brien and WPD Officer Shane Emerson as
defendants to this action. Each individual defendant is sued in
his individual and official capacity.
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Preliminary Review
I. Standard
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken as
true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
II. Background
This case arises out of Mrs. Amatucci’s interactions with
defendants, members of the Wolfeboro Police Department (“WPD”)
and employees of the Town of Wolfeboro (“Town”), on and after
May 7, 2014. On that day, Mrs. Amatucci alleges that she went
to the WPD to speak with then WPD Chief Stuart Chase to lodge a
complaint about a WPD officer concerning a traffic violation.
Mrs. Amatucci alleges that Chase would not accept her complaint,
and instead, physically assaulted her by pushing her out of the
building and told her that he would “get her” and arrest her if
she ever complained about any of his officers again.
Mrs. Amatucci went to the Town Hall to complain to the
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Board of Selectmen about Chase’s behavior and threats. Once
there, Mrs. Amatucci interacted with several Town employees,
including Rob Houseman. As a result of that interaction, the
Town employees, according to Mrs. Amatucci, falsely accused her
of causing a disturbance in the Town Hall, and Houseman caused
the WPD to be called in an effort to have Mrs. Amatucci
arrested. Mrs. Amatucci claims that Houseman’s actions in
having the police called were part of a conspiracy to have her
arrested, to silence her, and to retaliate against her for her
past complaints against Chase and other WPD officers.
Before the police arrived at the Town Hall, Mrs. Amatucci
stated that she was going to the Carroll County Sheriff’s
Department (“CCSD”). Mrs. Amatucci then left the Town Hall,
intending to proceed to the CCSD to complain about Chase’s
conduct, and to seek protection, as she feared that Chase would
make good on his alleged threats to “get her” and arrest her.
WPD Officer James O’Brien arrived at the Town Hall after Mrs.
Amatucci left. O’Brien or another member of the WPD called the
CCSD to ask for help in pursuing Mrs. Amatucci. O’Brien and
Chase also set out in pursuit of Mrs. Amatucci.
In the meantime, WPD Officer Shane Emerson saw Mrs.
Amatucci’s car and activated his blue lights and siren in an
effort to pull Mrs. Amatucci over. Emerson later stated that
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Mrs. Amatucci had been driving over the posted speed limit when
he first saw her car on that day, and that he began to pursue
her to pull her over for speeding. It also appears that, at the
time, information had been communicated via police radio
indicating that the police wanted Mrs. Amatucci stopped for
causing a disturbance at the Town Hall. Mrs. Amatucci did not
pull over for Emerson.
Mrs. Amatucci did pull over several miles later when a
member of the CCSD, standing by the side of the road, signaled
to Mrs. Amatucci to stop. Mrs. Amatucci was then arrested by
Chase and O’Brien and charged with speeding and disobeying a
police officer. Mrs. Amatucci was prosecuted on both charges,
and was acquitted of speeding, but convicted of disobeying a
police officer after a bench trial. See June 25, 2015 Order
After Trial on Merits, State v. Amatucci, No. 464-2014-CR-836
(N.H. Cir. Ct., 3d Cir., Dist. Div., Carroll Cty.).
As a result of the events at the WPD and Town Hall on May
7, 2014, Town employees, including Dave Owen and Rob Houseman,
caused a “No Trespass Order” (“NTO”) to be issued, generally
barring Mrs. Amatucci from entering the Town Hall or Town Public
Safety Building, with certain exceptions. Mrs. Amatucci states
the NTO was issued without a hearing at which she could contest
the NTO’s imposition on her right to be in those public
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buildings. Mrs. Amatucci further alleges that the NTO defamed
her, as it communicated to Town employees that she was
dangerous.
Mrs. Amatucci also claims that Owen further defamed her by
falsely reporting to a local newspaper reporter that Mrs.
Amatucci had cost the Town taxpayers a lot of money in legal
bills and resulting heightened insurance premiums. Mrs.
Amatucci states that as a result, she has been the subject of
contempt from other Wolfeboro residents, including a priest and
a post office employee. Mrs. Amatucci also alleges, without
elaboration, that she was defamed by a newspaper article
“accusing her of committing crimes that she never committed.”
Doc. No. 20, at 3.
III. Discussion
A. Failure to State a Claim
Mrs. Amatucci has sued Town employee Bob Houseman for
malicious prosecution, alleging that he was part of a
conspiracy to maliciously prosecute her for speeding,
because Houseman’s call and Mrs. Amatucci’s prosecution for
speeding were both motivated by an intent to retaliate
against Mrs. Amatucci for making complaints about the
police. Mrs. Amatucci has not stated facts that show that
Houseman had any role in the instigation or execution of
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Mrs. Amatucci’s prosecution for speeding. “[A]llegations
of conspiracy must . . . be supported by material facts,
not merely conclusory statements.” Slotnick v. Garfinkle,
632 F.2d 163, 165 (1st Cir. 1980) (per curiam) (citation
omitted).
Mrs. Amatucci claims that Houseman caused the police
to be contacted in order that Mrs. Amatucci be stopped from
reporting her grievances to the CCSD. Houseman’s actions
at Town Hall, however, occurred before Mrs. Amatucci was in
her car on the way to the CCSD at all, and certainly before
any decision to prosecute her for speeding was made. Mrs.
Amatucci has failed to assert facts to state a claim that
Houseman had a sufficient connection to the speeding
prosecution to render him liable for conspiracy to
maliciously prosecute Mrs. Amatucci for that offense.
Accordingly, the district judge should dismiss the
malicious prosecution and conspiracy claims asserted
against Houseman for failure to state a claim.
B. Res Judicata
In this case, Mrs. Amatucci has asserted a number of
federal constitutional and state law claims arising out of the
events of May 7, 2014 and the ensuing prosecution, and
concerning the NTO and Owen’s alleged defamation. Those events
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also gave rise to claims litigated by Mrs. Amatucci in a prior
federal case, see Amatucci v. O’Brien, No. 15-cv-356-JL (D.N.H.)
(“O’Brien”). O’Brien provides a basis for applying the doctrine
of res judicata to bar most of the claims asserted here.
When the preclusive effect of a federal judgment by a court
exercising federal question jurisdiction is at issue, the court
applies federal law of claim preclusion. Maher v. GSI Lumonics,
Inc., 433 F.3d 123, 126 (1st Cir. 2005). “Under the federal law
of claim preclusion, a final judgment on the merits of an action
precludes the parties or their privies from relitigating claims
that were raised or could have been raised in that action.”
Hatch v. Trail King Indus., 699 F.3d 38, 45 (1st Cir. 2012).
“Claim preclusion applies if (1) the earlier suit resulted in a
judgment on the merits, (2) the causes of action asserted in the
earlier and later suits are sufficiently identical or related,
and (3) the parties in the two suits are sufficiently identical
or closely related.” Airframe Sys., Inc. v. Raytheon Co., 601
F.3d 9, 14 (1st Cir. 2010).
All of the defendants in this action were defendants in
O’Brien, and almost all of the causes of action asserted here
were asserted in O’Brien. With one exception (namely, Mrs.
Amatucci’s claim here that defendants defamed her by causing a
newspaper to publish an article falsely stating that she has
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committed criminal acts), the identity of the parties and causes
of action here and in O’Brien are sufficiently related to
warrant application of res judicata.
The court in O’Brien issued a judgment on the merits as to
all claims in that case, and then altered that judgment to
dismiss without prejudice Mrs. Amatucci’s malicious prosecution
claims against Chase, O’Brien, and Emerson, which alleged that
they were liable for damages under state and federal law, for
prosecuting her maliciously for speeding, without probable
cause. See November 15, 2017 Order, O’Brien (ECF No. 229).
Therefore, Mrs. Amatucci’s Fourth Amendment and state law
malicious prosecution claims here against Chase, O’Brien, and
Emerson, concerning her prosecution for speeding, are not barred
by res judicata, as those claims were dismissed in O’Brien
without prejudice.2 All of the remaining claims in this lawsuit,
arising out of the events of May 7, 2014 and the ensuing
prosecution, and concerning the NTO and Owen’s statements that
Mrs. Amatucci had cost the Town taxpayers a lot of money in
litigation costs and insurance premiums, are barred by the
2In an Order issued simultaneously with this Report and
Recommendation, the court has directed service of Mrs.
Amatucci’s malicious prosecution claims on those defendants, and
also directed service of a tort claim of malicious prosecution
against the Town under a theory of respondeat superior, based on
Chase’s, O’Brien’s, and Emerson’s tortious conduct.
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doctrine of res judicata.
C. Supplemental Jurisdiction
Under 28 U.S.C. § 1367(a),
in any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that
are so related to claims in the action within such
original jurisdiction that they form part of the same
case or controversy under Article III of the United
States Constitution.
28 U.S.C. § 1367(a). “State and federal claims are part of
the same ‘case or controversy’ for the purposes of section
1367(a) if they derive from a common nucleus of operative
fact or are such that [they] . . . would ordinarily be
expected to [be] tr[ied] . . . in one judicial proceeding.”
Allstate Interiors & Exteriors, Inc. v. Stonestreet
Constr., LLC, 730 F.3d 67, 72 (1st Cir. 2013) (quotation
marks and citations omitted).
Mrs. Amatucci asserts that one or more defendants
defamed her by causing a newspaper to publish an article
falsely stating that she has committed criminal acts, and
that defendants responsible for that publication are liable
under state law for defamation. The defamation claim at
issue and Mrs. Amatucci’s malicious prosecution claims do
not appear to form part of the same case or controversy
under Article III. The record in this case does not reveal
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a substantial overlap as to the timing of the alleged
tortious acts; the claims are not based on the same conduct
or legal theories; and there is no apparent overlap as to
the defendants (in that Mrs. Amatucci has not specifically
alleged that Chase, Emerson, or O’Brien caused the
newspaper to publish false facts about her criminal
conduct). Accordingly, the district judge should dismiss
Mrs. Amatucci’s defamation claim, alleging she was falsely
accused of criminal conduct in a newspaper article, without
prejudice to her ability to refile that tort claim in state
court.
Motions
I. Summary Judgment and Demand for Remedy (Doc. Nos. 2, 13)
In her motion for summary judgment (Doc. No. 2), and in her
motion entitled “Her Right Under Part 1, Article 14 of the
Constitution/Demand for Plaintiff’s Entitled Remedy . . .” (Doc.
No. 13) (“Demand for Remedy”), Mrs. Amatucci seeks a ruling from
this court finding that her claims are established by facts
beyond question, and that she is entitled to relief in this
case, without a trial or other adversarial testing of the merits
of those claims. Mrs. Amatucci asks the court to immediately
find the defendants liable and to direct that this case proceed
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to a jury only on the issue of damages. In her summary judgment
motion (Doc. No. 2), Mrs. Amatucci also asks the court to enter
a finding that res judicata does not apply in this case.
Regardless of the strength of Mrs. Amatucci’s case (of
which the court expresses no opinion at this time), the
defendants have a right to challenge Mrs. Amatucci’s legal and
factual assertions to the full extent permitted by the law. The
court cannot, at this stage of the proceedings, enter judgment
for Mrs. Amatucci, and against the defendants, in this case.
Further, Mrs. Amatucci’s arguments in this motion concerning the
res judicata impact of past cases in this case are without
merit. Accordingly, the district judge should deny plaintiff’s
motion for summary judgment (Doc. No. 2) and her Demand for
Remedy (Doc. No. 13), without prejudice to Mrs. Amatucci’s
ability to file a properly supported motion for summary
judgment, pursuant to Fed. R. Civ. P. 56 and LR 56.1, at a later
date, after the defendants have appeared and answered in this
matter.
II. Motion for Relief from Judgment Under Rule 60 (Doc. No. 21)
In her motion, Mrs. Amatucci asks this court to set aside a
state court judgment declaring her a vexatious litigant in Town
of Wolfeboro v. Amatucci, No. 212-2016-CV-090 (N.H. Super. Ct.,
Carroll Cty.). The instant motion is not pertinent to the
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underlying claims in this case, and the issues in the motion are
not properly joined in this matter. Further, Mrs. Amatucci has
filed another case in this court, Amatucci v. Town of Wolfeboro,
No. 17-cv-581-LM (“Amatucci v. Town”), in which she seeks the
relief sought by this motion. For these reasons, the district
judge should deny the motion for relief from judgment (Doc. No.
21), without prejudice to Mrs. Amatucci’s ability to fully
litigate the issues and claims asserted in Amatucci v. Town, or
in an appropriate challenge to the pertinent judgment in the
state courts.
III. Motion for Hearing to Redress Her Grievances Regarding an
Expedited Jury Trial (Doc. No. 22)
In her motion docketed as Document No. 22, Mrs. Amatucci
asserts that she is pursuing a private criminal prosecution of
Stuart Chase, who is a defendant here, in state court. Mrs.
Amatucci asks that this matter be expedited as she asserts that
resolving this case would assist her in that prosecution. As
defendants have not been served, appeared, or answered in this
case, Mrs. Amatucci’s request that her trial be expedited is
premature. The request should be denied, therefore, without
prejudice to Mrs. Amatucci’s ability to seek an expedited trial
schedule at the preliminary pretrial conference in this matter,
which will be scheduled in due course.
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Further, in her motion to expedite (Doc. No. 22), Mrs.
Amatucci again asks that the court find she is entitled to
relief on her claims and that this matter should proceed to a
jury trial only on the issue of damages. For the reasons
previously set forth in this Report and Recommendation, Mrs.
Amatucci is not entitled to relief on that request without
affording defendants any process. For these reasons, the
district judge should deny Mrs. Amatucci’s motion for an
expedited hearing and/or trial (Doc. No. 22).
Conclusion
For the foregoing reasons, the district judge should:
1. Dismiss with prejudice all of the claims in this case,
except for the malicious prosecution claims asserted
against defendants Stuart Chase, James O’Brien, Shane
Emerson, and the Town of Wolfeboro, which are the subject
of an Order directing service in this action, and Mrs.
Amatucci’s defamation claim, alleging that the defendants
caused the publication of a newspaper article falsely
stating she committed a crime, which should be dismissed
without prejudice to Mrs. Amatucci’s ability to refile that
claim in state court.
2. Drop defendants Dave Owen and Robert Houseman from
this action.
3. Deny the motion for summary judgment (Doc No. 2), the
Demand for Remedy (Doc. No. 13), the motion for relief from
judgment (Doc. No. 21), and the motion for an expedited
hearing and trial (Doc. No. 22).
Any objections to this Report and Recommendation must be
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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. Failure to file specific written objections to the
Report and Recommendation 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
November 17, 2017
cc: Josephine Amatucci, pro se
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