Amatucci v. Wolfeboro, NH, Town of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. Civil No. 17-cv-581-LM
Town of Wolfeboro
REPORT AND RECOMMENDATION
Before the court for preliminary review is Josephine
Amatucci’s complaint (Doc. No. 1) in this matter, brought
against the Town of Wolfeboro (“Town”). Pursuant to 28 U.S.C.
§ 1915(e)(2) and LR 4.3(d)(2), the complaint is before the court
for preliminary review.
Preliminary Review 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)).
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Background
Mrs. Amatucci alleges that on June 29, 2015, the Town of
Wolfeboro (“Town”) filed a petition in the Carroll County
Superior Court (“CCSC”), asking that court to declare Mrs.
Amatucci to be a vexatious litigant, pursuant to N.H. Rev. Stat.
Ann. § (“RSA”) 507:15-a. See Town of Wolfeboro v. Amatucci, No.
212-2015-CV-0090 (N.H. Super. Ct., Carroll Cty.). On November
28, 2016, the CCSC granted the Town’s petition after a bench
trial and consideration of written submissions. See id. In its
November 28, 2016 vexatious litigant order (“VLO”), the CCSC
declared Mrs. Amatucci to be a vexatious litigant under RSA
507:15-a, and imposed restrictions on her ability to file
lawsuits in the New Hampshire Superior Court, as follows:
The court finds the appropriate remedy that restrains
Amatucci from further filing of frivolous complaints
and repetitive pleadings without violating her right
of access to the courts, is as follows:
A. Amatucci is henceforth required to post a
cash or surety bond sufficient to cover all
attorney’s fees and anticipated damages prior to
initiating any new complaint in the Superior
Court;
B. The court will screen and reject any
pleadings in existing cases, or new complaints or
lawsuits Amatucci files if they raise the same
issues previously addressed;
C. No civil lawsuits or criminal complaints
related to Amatucci’s arrests in 2002, 2003,
2013, or 2014, however they may be styled, will
be docketed;
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D. Any lawsuit, complaint or pleading that is
frivolous and filed with a purpose to harass will
be rejected;
E. Amatucci shall pay all required filing fees
and service fees for any new lawsuit she
initiates; and
F. Such fees shall not be refunded, if the
lawsuit is docketed and later dismissed.
VLO at 18-19. The record in the vexatious litigation action in
the CCSC indicates that no appeal was taken in that matter.
Mrs. Amatucci has now filed this action against the Town,
asserting that it is liable to her under 42 U.S.C. § 1983 for
violations of her federal rights, and for tortious conduct under
state law. Although neither the CCSC nor the state court judge
who issued the VLO are defendants here, certain claims in this
action, asserted under the banner of “due process” violations by
the Town, appear to be, in fact, challenges to the validity of
the VLO itself. The court addresses all of the claims asserted
below.
Discussion
I. Claims Challenging Validity of VLO
Mrs. Amatucci has asserted claims that explicitly or
implicitly ask the court to find that the VLO itself is invalid,
incorrect, overbroad, and/or void, both as a matter of state law
and as a matter of federal constitutional law. Under the
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Rooker-Feldman doctrine, however, this court does not have
jurisdiction to rule on the validity of the VLO. That doctrine
“applies in the limited circumstances where the losing party in
state court filed suit in federal court after the state
proceedings ended, complaining of an injury caused by the state-
court judgment and seeking review and rejection of that
judgment.” McKenna v. Curtin, 869 F.3d 44, 47–48 (1st Cir.
2017) (internal quotation marks and citations omitted).
In order to grant Mrs. Amatucci the relief she seeks on
claims that, in effect, challenge the validity of the VLO, this
court would have to determine that the CCSC incorrectly decided
the vexatious litigation case, and thereby pass judgment on that
court’s ruling. That is the appropriate function of an
appellate court, and this court is not empowered to serve in
that capacity for cases lost in state court. Accordingly, the
district judge should dismiss the following claims Mrs. Amatucci
has asserted in her complaint, as the Rooker-Feldman doctrine
deprives this court of jurisdiction to consider them:
 The VLO violates Mrs. Amatucci’s Fourteenth Amendment right
to equal protection, as it requires her to pay the filing
fee in any action she files, although she is indigent;
 The VLO violates Mrs. Amatucci’s First Amendment right to
access the courts in order to petition the government for a
redress of grievances, as it improperly restricts her
ability to file lawsuits in the Superior Court;
 The VLO was improperly issued, and the VLO action should
have been deemed barred by res judicata, as a previous
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Superior Court order precluded litigation of the question
of whether Mrs. Amatucci is a vexatious litigant;
 The VLO was based on the CCSC’s incorrect finding that Mrs.
Amatucci’s previous lawsuits, upon which the VLO was based,
were frivolous and harassing;
 The petition seeking the VLO failed to state a claim, and
was based on malice, deceit, and fraud;
 The VLO is void on its face because the court did not have
sufficient evidence before it to satisfy the requirements
for finding an individual to be a vexatious litigant
pursuant to RSA 507:15-a; and
 The vexatious litigant action was “rigged” and the validity
of the VLO is undermined by ex parte communications between
the court and the defendant.
II. Claims Against the Town
A. Substantive and Procedural Due Process Claims
Mrs. Amatucci asserts that the Town violated her Fourteenth
Amendment rights to substantive and procedural due process by
filing a vexatious litigant petition in the CCSC. Mrs. Amatucci
has not alleged that any act of the Town deprived her of any of
her procedural rights in the vexatious litigation proceedings.
Further, Mrs. Amatucci has not alleged that the Town took any
action to interfere with her ability to appeal the CCSC’s
decision to the New Hampshire Supreme Court. Accordingly, Mrs.
Amatucci has failed to state a claim against the Town for a
violation of her procedural due process rights.
Mrs. Amatucci’s Fourteenth Amendment claim against the Town
arises, if at all, as one asserting a violation of her
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substantive due process rights. “In order to assert a viable
substantive due process claim, a plaintiff has ‘to prove that
[he or she] suffered the deprivation of an established life,
liberty, or property interest, and that such deprivation
occurred through governmental action that shocks the
conscience.’” Najas Realty, LLC v. Seekonk Water Dist., 821
F.3d 134, 145 (1st Cir. 2016) (citation omitted) (emphasis in
original). “To meet this standard, the state actions must be
‘so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.’” Irish v. Maine, 849 F.3d
521, 526 (1st Cir. 2017) (quoting Cty. of Sacramento v. Lewis,
523 U.S. 833, 847 n.8 (1998)).
Assuming, without deciding, that Mrs. Amatucci could
demonstrate that the actions of the Town in filing the vexatious
litigant petition, that Mrs. Amatucci was able to defend,
deprived her of a constitutionally protected interest, filing
such an action is not conduct that “shocks the conscience.” To
the extent Mrs. Amatucci has asserted that the Town engaged in
wrongdoing during that litigation, she has similarly failed to
demonstrate conscience-shocking behavior. Accordingly, Mrs.
Amatucci has failed to state a federal due process claim against
the Town.
B. State Law Claims
Under 28 U.S.C. § 1367(a),
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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).
The undersigned magistrate judge has recommended that
the district judge dismiss all of the federal claims from
this action. If the district judge adopts that
recommendation, this case will contain no claims over which
this court has original jurisdiction. Accordingly, the
court recommends that the court decline to exercise
supplemental jurisdiction over Mrs. Amatucci’s claims that
arise under state law, identified as Claims 2(a)-(b), with
subparts, and dismiss those claims without prejudice to
Mrs. Amatucci’s ability to assert them in state court.
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Conclusion
For the foregoing reasons, the court recommends that the
district judge dismiss this action in its entirety, without
prejudice to Mrs. Amatucci’s ability to file her state law
claims in a court of competent jurisdiction. 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. 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
December 18, 2017
cc: Josephine Amatucci, pro se
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