McCarthy v. Exeter, NH, Town of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott Normand McCarthy
v. Civil No. 22-cv-143-LM
Town of Exeter, et al.
Report and Recommendation
Proceeding pro se and in forma pauperis, Scott N. McCarthy
brings civil rights claims under 42 U.S.C. § 1983 that arose
from his arrest and prosecution by officers in the Exeter (New
Hampshire) Police Department. He contends that he was
wrongfully arrested and prosecuted on six felony charges,
beginning in 2011 and continuing into 2019. The complaint and
amended complaint are referred for preliminary review pursuant
to 28 U.S.C. § 1915(e) and Local Rule 4.3(d)(2).
Standard of Review
The court conducts a preliminary review of complaints filed
by pro se litigants proceeding in forma pauperis. Claims may be
dismissed, sua sponte, if the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. See
§ 1915(e)(2); LR 4.3(d)(2). In considering whether a pro se
complaint states a claim, the court construes the pleading
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 1 of 7

2
curiam). The court then determines whether, stripped of legal
conclusions, and with all reasonable inferences construed in
plaintiff's favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
McCarthy alleges that he has been detained on charges by
officers in the Exeter Police Department on many occasions
beginning in 2011. He names the Town of Exeter, Exeter Police
Chiefs Stephan Poulin and William Shupe, Prosecutor Nicole
Mazur,and Exeter police officers Bailey Teixeira, Michael
Ingenito, Peter Sankowich, Joseph Saluto, Justin Ranauro,
Michael Munk as defendants.
In support of his claims, McCarthy alleges that he was
wrongfully arrested and prosecuted on six felony charges
beginning in February of 2011. McCarthy states that his police
report is 279 pages long and includes many other charges and
arrests.
On February 15, 2011, he was arrested on two counts of
check forgery when he deposited checks in his own account that
were issued by Exeter Day Care payable to All Phase
Construction. The matter came to the attention of the police
when an issue arose about taxes owed by All Phase Construction
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 2 of 7

3
on the amounts paid in the checks. Those charges were nolle
prossed in August of 2012.
In October of 2011, McCarthy was arrested on two charges
for issuing a check to his landlord without sufficient funds in
his account. McCarthy alleges that the check was actually
written by his brother, Shawn, from his brother’s account. He
also alleges that he made good on that debt by paying in cash
but could not find the receipt. McCarthy further alleges that
he made an agreement with his landlord pertaining to moving from
the property and repaying rent, which lead to charges against
McCarthy for witness tampering. He contends that the charges
were the result of confusion by the police about the separate
actions of McCarthy and his brother, inept investigation, or
confusion about another Scott McCarthy who was arrested in
Manchester on sex charges. The check charges and witness
tampering charge were dropped by August of 2012.
Another charge brought by the defendants against McCarthy
was the result of McCarthy’s efforts to buy and finance a house
and property. McCarthy rented part of the property to a tenant,
although his ownership was disputed. The tenant and the owner
of the property filed police reports against McCarthy, and he
was arrested on November 16, 2018, for theft by deception.
McCarthy alleges that the police dropped that charge on April
23, 2019.
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 3 of 7

4
Discussion
McCarthy contends that the defendants unlawfully seized,
detained, and arrested him in violation of the Fourteenth
Amendment. He also contends that the defendants violated his
civil rights under 18 U.S.C. §§ 241 and 242, NH RSA 644:11, and
the First Amendment. He seeks compensatory and punitive
damages.
A. Claim of Unlawful Seizure under the Fourteenth
Amendment
“To be cognizable, a [Fourteenth Amendment] substantive due
process claim under 42 U.S.C. § 1983 must allege facts so
extreme and egregious as to shock the contemporary conscience.”
Abdisamad v. City of Lewiston, 960 F.3d 56, 59–60 (1st Cir.
2020) (internal quotation marks omitted). The substantive due
process clause of the Fourteenth Amendment does not provide a
constitutional right to be free of malicious prosecution.1
Freeman v. Town of Hudson, 714 F.3d 29, 41 (1st Cir. 2013).
1 In contrast, allegations that a plaintiff has been
charged, arrested, and prosecuted without probable cause pertain
to a violation of the plaintiff’s Fourth Amendment rights, as a
claim for unreasonable seizure pursuant to legal process. See
Thompson v. Clark, 142 S. Ct. 1332, 1337-38 (2022).
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 4 of 7

5
McCarthy’s allegations at most may suggest malicious
prosecution. As such, the allegations do not rise to the level
of a substantive due process claim. Therefore, McCarthy has not
stated a cognizable cause of action under the Fourteenth
Amendment, and his claims brought under the Fourteenth Amendment
should be dismissed.
B. Claims under Sections 241 and 242
McCarthy alleges that the defendants conspired to violate
his civil rights in violation of §§ 241 and 242. Sections 241
and 242 are criminal conspiracy statutes that do not allow for a
private cause of action. See Cok v. Cosentino, 876 F.2d 1, 2
(1st Cir. 1989) (“Only the United States as prosecutor can bring
a complaint under 18 U.S.C. §§ 241-242 (the criminal analogue of
42 U.S.C. § 1983).”); accord Kahyaoglu v. Sayied, No. 19-CV-
11736-IT, 2020 WL 5880523, at *2 (D. Mass. Oct. 2, 2020). For
that reason, McCarthy’s claims under §§ 241 and 242 should be
dismissed for failure to state a cognizable cause of action.
C. Claims of Violation of NH RSA 644:11
NH RSA 644:11 is New Hampshire’s criminal defamation
statute. No private right of action has been recognized under
NH RSA 644:11. See Maggi v. McComiskey, 17-cv-109-SM, 2017 WL
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 5 of 7

6
4803908, at *3 (D.N.H. Oct. 23, 2017) (limited on other grounds
by 2019 WL 11071788 (1st Cur, Feb, 29, 2019)). Therefore,
McCarthy’s claims that the defendants violated NH RSA 644:11
should be dismissed for failure to state a cognizable cause of
action.
D. Claims under the First Amendment
The First Amendment protects certain expressive rights
including freedom of speech, assembly, exercise of religion, and
redress of grievances. See U.S. Const. amend. I; see also City
of Dalas v. Stanglin, 490 U.S. 19, 24 (1989). None of
McCarthy’s allegations implicate his First Amendment rights. He
provides no supporting explanation for that claim.
Therefore, McCarthy has not alleged a claim that the
defendants violated his First Amendment rights, and any claims
under the First Amendment should be dismissed.
Conclusion
For the foregoing reasons, the district court should
dismiss the plaintiff’s complaint (Doc. no. 1) and amended
complaint (Doc. no. 3) for failure to state a cognizable cause
of action and close the case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 6 of 7

7
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections 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
June 7, 2022
cc: Scott Normand McCarthy, pro se.
Case 1:22-cv-00143-LM Document 4 Filed 06/07/22 Page 7 of 7