Amatucci v. Morgan et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. Civil No. 16-cv-255-LM
Prosecutor Timothy Morgan, and
Wolfeboro Police Department
REPORT AND RECOMMENDATION
Pro se plaintiff, Josephine Amatucci, has filed a complaint
(Doc. No. 1), and three addenda to the complaint (Doc. Nos. 3-
5), against the Wolfeboro, New Hampshire, Police Department
(“WPD”) and the WPD Prosecutor, Timothy Morgan, seeking damages
and an order from this court reversing her conviction in a state
court criminal proceeding. The pleadings are before the court
for preliminary review. See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints filed in forma pauperis. The magistrate judge may
recommend to the district judge that one or more claims be
dismissed if, among other things, the court lacks jurisdiction,
a defendant is immune from the relief sought, or the complaint
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fails to state a claim upon which relief may be granted. See 28
U.S.C. § 1915(e)(2); LR 4.3(d)(2). In conducting its
preliminary review, the court construes pro se complaints
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). The complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief.’” See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
On May 7, 2014, Amatucci was arrested for disobeying a
police officer. A criminal complaint was subsequently brought
against Amatucci, and she was tried and convicted on that
charge. Amatucci alleges that Morgan, the prosecutor in that
criminal case, replaced a CD/DVD that contained exculpatory
evidence, with a different CD/DVD. As a result, Amatucci states
that she was denied access to exculpatory evidence that, she
asserts, would have resulted in her acquittal if it had been
admitted at trial. Amatucci also alleges that Morgan conspired
with both the WPD and the trial court judge to violate
Amatucci’s rights, and to prosecute her, knowing that her arrest
was unlawful.
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Claims Asserted
Amatucci asserts the following claims in this action:
1. Morgan concealed and suppressed exculpatory
information from Amatucci and from the court, in violation
of Amatucci’s Fourteenth Amendment right to due process.
2. Morgan knowingly utilized false evidence to convict
Amatucci by substituting a CD/DVD that contained
exculpatory evidence, with a different CD/DVD, and placed
the substitute CD/DVD in evidence at trial, in violation of
Amatucci’s Fourteenth Amendment right to due process.
3. Morgan engaged in a malicious prosecution against
Amatucci, in violation of the Fourth and Fourteenth
Amendments and state law.
4. Morgan and the WPD conspired to subject Amatucci to a
malicious prosecution, in violation of Amatucci’s
Fourteenth Amendment right to a fair trial and Fourth
Amendment right not to be arrested without a warrant.
5. Morgan and the state court judge conspired subject
Amatucci to a malicious prosecution, in violation of
Amatucci’s Fourteenth Amendment right to a fair trial and
Fourth Amendment right not to be arrested without a
warrant.
6. Morgan committed the crimes of fraud, perjury, and
tampering with public records, by falsifying evidence
utilized at trial.
Discussion
I. Heck Bar (Claims 1-5)
Under Heck v. Humphrey, 512 U.S. 477 (1994), “[w]hen ‘a
judgment in favor of the plaintiff would necessarily imply the
invalidity of [her] conviction or sentence,’ . . . [42 U.S.C. §]
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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). In this § 1983 action, seeking
damages and injunctive relief, Amatucci now asserts claims,
identified above as Claims 1-5, alleging violations of her
constitutional rights and her rights under state law. To grant
Amatucci the relief she seeks in those claims, the court would
have to determine that her conviction, which has not been
overturned or otherwise invalidated, is invalid. Accordingly,
the Heck bar applies in this case, and the district judge should
dismiss Claims 1-5.
II. Criminal Acts (Claim 6)
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 Morgan
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prosecuted for criminal acts. Accordingly, the district judge
should dismiss Amatucci’s claim identified above as Claim 6.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety. 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 13, 2016
cc: Josephine Amatucci, pro se
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