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.1
REPORT AND RECOMMENDATION
Plaintiff, Josephine Amatucci, has filed this civil rights
action against the Town of Wolfeboro (“Town”) and current and
former employees of the Town and the Wolfeboro Police Department
(“WPD”). Before the court are documents Amatucci filed after
August 5, 2016, which the court construes as proposed addenda to
the complaint (Doc. Nos. 56, 57, 60-62, 64-75, 78, 81, 82, 84-
86, 89, 90, 93-98). The court subjects those proposed addenda
to preliminary review under LR 4.3(d)(2) and 28 U.S.C.
§ 1915(e)(2).
Also before the court are the following motions, filed by
Amatucci after August 5, 2016:
1The defendants in this action are: the Town of Wolfeboro,
New Hampshire (“Town”); Wolfeboro Police Department (“WPD”)
Chief Stuart Chase; WPD Officer Shane Emerson; former WPD
Officer James O’Brien; Town Manager Dave Owen; and former Town
Planner Rob Houseman.
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 Plaintiff’s “Motion to Amend” (Doc. No. 66); and
Plaintiff’s Response (Doc. No. 85);
 Plaintiff’s “Petition/Motion for New Trial” (Doc. No.
68);
 Plaintiff’s “Motion to Add Another Claim” (Doc. No.
69); and Plaintiff’s “Cause of Action for Pain and
Suffering Claim” (Doc. No. 86);
 Plaintiff’s “Petition/Motion for New Trial” (Doc. No.
71);
 Plaintiff’s “Petition for Injunctive Relief/Hearing
Requested” (Doc. No. 82); and
 Plaintiff’s “Motion to Address the Trial Court Case
Based on the No-Trespass Order” (Doc. No. 84).
In addition to considering the factual and legal assertions in
those motions as proposed complaint addenda, the court makes
recommendations as to the disposition of the motions.2
Discussion
I. Preliminary Review3
A. Claims Previously Dismissed from this Case
2Plaintiff’s “Petition for Injunctive Relief/Hearing
Requested” (Doc. No. 82) has been specifically referred to this
magistrate judge for a report and recommendation as to
disposition.
3In conducting this preliminary review of the proposed
complaint amendments and addenda, the court applies the same
standard applied during the initial preliminary review in this
case, as set forth in the August 5, 2016, Report and
Recommendation (“R&R”) (Doc. No. 52).
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1. Unlawful Arrest, Imprisonment, and Prosecution
(Doc. Nos. 65, 67, 70, 73, 74, 78, 81, 89, 95,
96, and 98)
The court has dismissed Amatucci’s claims asserting that
her May 7, 2014, arrest and imprisonment, and her ensuing
prosecution, were unlawful. See Doc. No. 63 (Aug. 19, 2016,
Order). To the extent Amatucci’s filings, docketed as Document
Nos. 65, 67, 70, 73, 74, 78, 81, 89, 95, 96, and 98, seek to
renew those claims, those claims should be dismissed from this
action.
2. Claims Concerning the Failure to Investigate
Police Misconduct (Doc Nos. 60 and 61)
The court has dismissed Amatucci’s claims asserting that
the Town has violated her rights by engaging in a de facto
policy of refusing to investigate her police misconduct
complaints. See Doc. No. 63 (Aug. 19, 2016, Order). To the
extent Amatucci’s filings, docketed as Document Nos. 60 and 61,
seek to renew those claims, those claims should be dismissed
from this action.
3. Intentional Infliction of Emotional Distress
Claims (Doc. Nos. 62, 64, 90)
The court has previously dismissed Amatucci’s claims that
defendants in this action are liable to her for the state law
tort of the intentional infliction of emotional distress. See
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Doc. No. 63 (Aug. 19, 2016, Order). Amatucci now argues that
the court failed to properly characterize the defendants’
alleged behavior as sufficiently abhorrent to warrant liability.
Amatucci has not asserted new facts to support that assertion.
To the extent Amatucci’s filings, docketed as Document Nos. 62
and 64, and 90, seek to renew those claims, those claims should
be dismissed from this action.
4. Defamation – Town Hall (Doc. No. 90)
The court has previously dismissed Amatucci’s claim that Town
Manager Dave Owen defamed Amatucci by yelling at her in the Town
Hall. See Doc. No. 63 (Aug. 19, 2016, Order). Amatucci now
seeks to reassert that claim, but has not alleged sufficient
additional facts to support such a claim. To the extent
Amatucci seeks in her complaint addendum docketed as Document
No. 90, to renew her defamation claim alleging that Owen yelled
at her on one or more occasion in the Town Hall, that claim
should be dismissed from this case.
5. Municipal Liability Claims (Doc. No. 97)
The court has previously dismissed Amatucci’s claims that
the Town was responsible, under a theory of municipal liability,
for the actions of (former) Town Planner Robert Houseman and
Town employee Anne Marble on May 7, 2014. See Doc. No. 63 (Aug.
19, 2016, Order). Amatucci now seeks to reassert those claims,
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but has not alleged sufficient additional facts to support such
claims. To the extent Amatucci seeks in her proposed complaint
addendum, docketed as Document No. 97, to renew those claims,
those claims should be dismissed from this case.
B. Conspiracy – Trooper Greg Dube (Doc. No. 72)
The court has dismissed a conspiracy claim Amatucci
asserted against New Hampshire State Police Trooper Greg Dube
and Owen. See Doc. No. 63 (Aug. 19, 2016, Order). Amatucci now
asserts, in the proposed complaint addendum filed in this matter
as Document No. 72, that she intended to assert that the alleged
conspiracy was between Dube and the WPD and/or WPD Chief Stuart
Chase. No specific facts in the filings in this case give rise
to a reasonable inference that a conspiracy existed between Dube
and anyone in the WPD. Accordingly, to the extent Amatucci
seeks in her proposed complaint addendum, docketed as Document
No. 72, to assert a claim that the WPD and Chase at this time
conspired with Dube, the claims at issue should be dismissed
from this case.
C. Claims Asserted Against WPD Prosecutor Timothy Morgan
(Doc. Nos. 56, 57, 75, and 98)
1. Claims Concerning CD/DVD Evidence
The court has dismissed Amatucci’s claims against Attorney
Timothy Morgan, alleging that he withheld exculpatory evidence
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against her in the criminal prosecution arising out of the
events of May 7, 2014, on the basis that those claims are barred
by Heck v. Humphrey, 512 U.S. 477 (1994). See Doc. No. 63 (Aug.
19, 2016, Order). Under Heck, “[w]hen ‘a judgment in favor of
the plaintiff would necessarily imply the invalidity of [her]
conviction or sentence,’ . . . [42 U.S.C. §] 1983 is not an
available remedy,” absent a showing that the conviction
terminated in her favor, or has been otherwise invalidated.
Skinner v. Switzer, 562 U.S. 521, 533 (2011) (quoting Heck, 512
U.S. at 487).
Amatucci now seeks to bring claims against Morgan alleging
that he falsified and fabricated evidence against her at her
June 2015 trial. These claims are also barred by Heck, and
should be dismissed.
2. Defamation and Due Process Violations
Amatucci asserts that Morgan’s decision to prosecute her
resulted in violations of her state and federal constitutional
due process rights and amounted to defamation under state law.
Prosecutors are entitled to absolute immunity from claims
arising out of their “prosecutorial actions that are ‘intimately
associated with the judicial phase of the criminal process.’”
Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); accord Belcher v.
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Paine, 136 N.H. 137, 148, 612 A.2d 1318, 1325-26 (1992). The
act of deciding whether to prosecute a particular case falls
squarely within the scope of prosecutorial functions that occur
during “the judicial phase of the criminal process.”
Accordingly, Morgan is absolutely immune from civil liability
for the act of prosecuting Amatucci, and the defamation and due
process claims asserted against Morgan should be dismissed.
3. Reduction of Class A Misdemeanor to Class B
Misdemeanor
Amatucci alleges that Morgan violated state law when he
reduced the disobeying a police officer charge against her from
a Class A to a Class B misdemeanor, resulting in the loss of her
right to a jury trial and her right to a trial de novo. Because
Amatucci’s claim challenges the validity of her conviction, it
is barred by Heck. Further, a prosecutor’s decision to bring a
particular criminal charge is within the scope of prosecutorial
functions that entitle Morgan to immunity from civil liability
for that choice. Accordingly, Amatucci’s claims against Morgan
asserting that her rights were violated by the reduction of her
charge to a Class B misdemeanor should be dismissed.
D. Claims Seeking Criminal Prosecution of any Defendant
(Doc. No. 56, 57, and 94)
Amatucci alleges that certain defendants in this action
have committed criminal acts. Specifically, she alleges that:
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her May 7, 2014, arrest constituted a kidnapping by Chase, WPD
Officer Shane Emerson, and (former) WPD Officer James O’Brien;
and that Owen committed perjury by telling lies about Amatucci.
There is no cause of action under § 1983 for the failure to
prosecute a crime, as an individual has no federal
constitutional right to have criminal wrongdoers brought to
justice. See Leeke v. Timmerman, 454 U.S. 83, 87 (1981);
Nieves-Ramos v. Gonzalez-De-Rodriguez, 737 F. Supp. 727, 728
(D.P.R. 1990) (citing Linda R. S. v. Richard D., 410 U.S. 614,
619 (1973) (“a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another”)).
Amatucci cannot state a claim asserting a right to have
defendants prosecuted for criminal acts, and those claims should
be dismissed.
E. Challenges to Judge McAuliffe’s July 29, 2013, Order
(Doc. Nos. 60 and 61)
On July 29, 2013, Judge McAuliffe enjoined Amatucci from
filing “any further actions in this court arising from her 2003
arrest without prior approval from a judge of this court.”
Amatucci v. Hamilton, No. 13-cv-087-SM (D.N.H. July 29, 2013),
ECF No. 8. Amatucci now asserts that that Order is void
because, she asserts, Judge McAuliffe is somehow connected to a
law firm that represents defendants in that action.
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The case in which the July 29, 2013, Order was issued is
closed. Amatucci did not appeal the Order she is now
challenging. Amatucci’s request to void Judge McAuliffe’s
injunction in the context of this case should be denied.
F. Claims Asserting Negligent Infliction of Emotional
Distress (Doc. Nos. 62, 64, 90)
The court has previously dismissed Amatucci’s claim that
defendants in this action are liable to her for the state law
tort of negligent infliction of emotional distress, see Doc. No.
63 (Aug. 19, 2016, Order), because Amatucci failed to assert
that she suffered “serious mental and emotional harm accompanied
by objective physical symptoms,” Mottram v. Wells Fargo Bank,
N.A., No. 15-cv-470-PB, 2016 DNH 046, 2016 WL 917905, at *4–*5,
2016 U.S. Dist. LEXIS 29224, at *11-*12 (D.N.H. Mar. 8, 2016)
(internal quotation marks and citations omitted), and had thus
failed to state a viable negligent infliction of emotional
distress claim in this matter. Amatucci has now alleged that,
as a direct result of the defendants’ mistreatment, she has
suffered insomnia due to fear of the police, and severe
emotional distress that manifest as uncontrollable outbursts and
crying jags. These facts are minimally sufficient to allow
Amatucci’s negligent infliction of emotional distress claim to
proceed and, in an Order issued simultaneously with this Report
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and Recommendation (“Simultaneous Order”), the court directs
defendants Chase, Emerson, and O’Brien to respond to that claim.
G. Defamation Claim - Costs of Litigation (Doc. Nos. 66,
85, 90, 93)
The court previously dismissed Amatucci’s claim, numbered
as Claim 7 in the August 5, 2016, Report and Recommendation
(“R&R”), alleging that she was defamed when a Town employee
provided information to a local newspaper that mischaracterized
the cost of Amatucci’s cases. See Doc. No. 63 (Aug. 19, 2016,
Order). The claim was dismissed without prejudice to
plaintiff’s ability to move to amend her complaint to name a
specific defendant, and to state, with specificity, what acts or
admissions of that individual caused her to be defamed.
Amatucci now asserts, in her filings docketed as Document
Nos. 66, 85, 90, and 93, that Owen provided false information to
the newspaper about Amatucci, resulting in significant harm to
her reputation. Specifically, Amatucci asserts that Owen
falsely told the newspaper that Amatucci was responsible for the
expenditure of “far more than $30,000” in taxpayer money for
legal bills the Town incurred as a result of Amatucci’s actions.
In the same newspaper interview, Owen stated that, as a result
of the Town’s “claims experience,” the Town’s insurance costs
were going to increase by up to ten percent in each of the next
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two years. While Owen did not specify what “claims experience”
he meant, the statement was made in the context of a statement
concerning Amatucci’s many claims against the Town. Amatucci
further asserts a factual basis for alleging that Owen’s
statements to the newspaper were false. Those assertions state
a defamation claim against Owen. See Pierson v. Hubbard, 147
N.H. 760, 763, 802 A.2d 1162, 1165 (2002) (plaintiff proves
defamation by showing that defendant failed to exercise
reasonable care in publishing, without privilege, false and
defamatory statement of fact about plaintiff to third party).
Amatucci’s filings fail to allege sufficient facts to show that
any other statement by Owen was false and defamatory, and/or was
made without exercising reasonable care.
Accordingly, the claim identified as Claim 7 in the August
5, 2016, R&R, is now amended to assert as follows:
7. Town Manager, Dave Owen, defamed Amatucci by providing
false information to the Granite State News newspaper that
Amatucci had: cost the Wolfeboro taxpayers “far more than
$30,000” in legal costs since January 2014, and had caused
the Town’s insurance rates to increase by 10% in each of
the next two years, thus damaging Amatucci’s reputation and
causing her to be subjected to contempt and harassment by
members of the public.
In the Simultaneous Order, the court grants Amatucci’s request
to proceed on Claim 7, as amended, in this lawsuit, and directs
Owen to respond to the claim.
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H. Damages Sought (Doc. Nos. 69, 86, 90)
In some of her filings (Doc. Nos. 69, 86, and 90), Amatucci
clarifies that she seeks particular kinds and amounts of damages
for redress of the claims that have been allowed in this action.
Amatucci may do so. To the extent any such request amends her
complaint, the amendment should be allowed.
II. Motions
A. Motion to Amend Complaint (Doc. Nos. 66 and 85)
For the reasons stated above, in the Simultaneous Order,
the court grants Amatucci’s Motion to Amend (Doc. Nos. 66 and
85) to the extent she seeks to reassert her defamation claim,
identified as Claim 7 in the August 5 R&R, as amended here. In
the Simultaneous Order the court directs Owen to respond to that
claim. The motion to amend (Doc. Nos. 66 and 85) should be
denied in all other respects.
B. Motions for New Trial (Doc. Nos. 68 and 71)
In June 2015, Amatucci was convicted, in the Carroll County
Circuit Court, of disobeying a police officer. See State v.
Amatucci, No. 464-2014-CR-00836 (N.H. Cir. Ct., 3rd Cir., Dist.
Div., Carroll Cty., Ossipee, June 25, 2015). On April 29, 2016,
the New Hampshire Supreme Court affirmed that conviction. See
State v. Amatucci, No. 2015-0562 (N.H. Apr. 29, 2016). Amatucci
now asks this court to vacate her conviction, and to direct the
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state Superior Court to provide her with a new trial, based on
the prosecutor’s improper amendment of her charge and the
improper denial of a jury trial.
To grant plaintiff the release she seeks, the court would
be required to issue an order “necessarily imply[ing] the
invalidity of [her] conviction or sentence.’” Skinner v.
Switzer, 562 U.S. 521, 533 (2011) (quoting Heck, 512 U.S. at
487). Amatucci cannot seek a new trial in her state criminal
matter in this § 1983 action, and her motions for new trial
(Doc. Nos. 68 and 71) should be denied.
C. Motion for Injunctive Relief (Doc. No. 82)
To obtain a preliminary injunction, a plaintiff must
establish a likelihood of success on the merits of her
underlying claims, irreparable harm in the absence of
preliminary relief, a showing that the balance of equities tips
in plaintiff’s favor, and a showing that an injunction is in the
public interest. Glossip v. Gross, 135 S. Ct. 2726, 2736
(2015). The likelihood of success on the merits and irreparable
harm are the factors that weigh most heavily in the analysis.
See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st
Cir. 2006); see also Voice of the Arab World, Inc. v. MDTV Med.
News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). The burden of
proof on a motion for preliminary injunction is on the movant.
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See Esso Std. Oil Co., 445 F.3d at 18.
Plaintiff seeks injunctive relief in the form of an order
directing Owen not to threaten her when she enters Town Hall.
Defendants object. According to plaintiff’s motion, she went to
Town Hall to file a warrant article with the Town Clerk, at
which time Owen threatened her. The nature of the threat is
unspecified in the motion, but defendants concede that Owen
advised Amatucci that her presence at Town Hall violated an
existing “No Trespass Order” issue by the Town, that Owen was
going to call the police, and that she might be removed from
Town Hall.
Amatucci has not demonstrated that she will suffer
irreparable harm if the court does not issue injunctive relief.
Amatucci does not allege that Owen prevented her from engaging
in any activity in which she had a right to engage, or that he
subjected her to any harm by “threatening” to call the police to
enforce an existing order prohibiting her from going to the Town
Hall without prior written permission. Amatucci has not alleged
that any threat to her safety was made, or that she anticipates
being at Town Hall in the foreseeable future under similar
circumstances. Amatucci has thus failed to show that she will
be irreparably harmed if the court does not issue the requested
order. Accordingly, Amatucci is not entitled to injunctive
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relief, and her motion for such relief (Doc. No. 82) should be
denied.
D. Motion to Add Claim (Doc. Nos. 69 and 86)
Amatucci seeks to add a claim of “pain and suffering” to
this action. An allegation that a plaintiff has endured “pain
and suffering,” by itself, does not state any claim under state
or federal law. Accordingly, the motion to add a “claim” of
pain and suffering per se should be denied, in part, to the
extent Amatucci seeks leave to add “pain and suffering” as a
free-standing claim.
Evidence that Amatucci has endured pain and suffering may
be relevant to the amount of damages plaintiff may be awarded
for other claims in this case. Accordingly, the Simultaneous
Order directs defendants to respond to the assertions in
Document Nos. 69 and 86, regarding Amatucci’s pain and
suffering.
E. Motion to Address the Trial Court Based on the No-
Trespass Order (Doc. No. 84)
In her “Motion to Address the Trial Court Based on the No-
Trespass Order” (Doc. No. 84), it appears that Amatucci
anticipates that defendants will seek to dismiss her claims,
numbered in the August 5 R&R as Claims 3(a), 3(b), 8(a), and
8(b), challenging the “No Trespass Order” on res judicata
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grounds. Amatucci seeks a preemptive ruling from this court
that such a motion, if filed, would be denied. The court
declines to rule or offer any opinion on a motion that has not
yet been filed. Accordingly, the district judge should deny
Amatucci’s motion, without prejudice to her ability to raise any
of the issues therein if defendants seek dismissal of her claims
challenging the “No Trespass Order” on res judicata grounds.
Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge approve this R&R, by accepting the
following specific recommendations:
1. Dismissal of claims asserted in Document Nos. 60-
62, 64, 65, 67, 73, 74, 78, 81, 89, 90, and 95-98, that
simply reassert claims that this court previously dismissed
in the August 19, 2016, Order (Doc. No. 63);
2. Dismissal of the conspiracy claims asserted in
Document No. 72;
3. Dismissal of the claims against defendant Morgan,
asserted in Document Nos. 56, 57, 75, and 98;
4. Dismissal of claims seeking criminal prosecution
of defendants in Document Nos. 56, 57, and 94;
5. Dismissal of claims asserted in Document Nos. 60
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and 61, seeking reversal of Judge McAuliffe’s injunction
issued in a separate proceeding;
6. Denial of Amatucci’s motion to amend (Doc. Nos.
66 and 85), in part, except to the extent she seeks to
amend and reassert Claim 7 (as amended);
7. Denial of Amatucci’s motion to add a free-
standing claim of pain and suffering to this case (Doc.
Nos. 69 and 86); and
7. Denial of Amatucci’s motion for a new trial (Doc.
Nos. 68 and 71); motion for injunctive relief (Doc. No.
82); and motion to address the trial court (Doc. No. 84).
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
October 19, 2016
cc: Josephine Amatucci, pro se
Garry R. Lane, Esq.
Mark H. Puffer, Esq.
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