Amatucci v. O'Connor

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. 	Case No. 22-cv-273-JL
Dennis O’Connor
REPORT AND RECOMMENDATION
Plaintiff Josephine Amatucci has filed a complaint (Doc.
No. 11) asserting that her attorney in a state court criminal
trial violated her rights under the United States Constitution
and state law. 	The matter is before the Court for preliminary
review pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Standard of Review
In conducting preliminary review of a pro se complaint
under 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2), the court
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’” upon which relief can be
granted. 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted). 	In determining whether a pro se pleading states a
claim, the court construes the pleading liberally. 	See Erickson
1 Mrs. Amatucci has numbered her complaint as #5394 and
#5396.
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v. Pardus, 551 U.S. 89, 94 (2007). 	The court may dismiss claims
asserted in a complaint filed by a pro se plaintiff if the court
lacks subject matter jurisdiction, a defendant is immune from
the relief sought, the complaint fails to state a claim, or the
action is frivolous or malicious. 	See 28 U.S.C. § 1915A(b); LR
4.3(d)(1)(A).
Background
This action relates to a criminal prosecution against Mrs.
Amatucci in state court. 	The state trial court appointed
Attorney Dennis O’Connor, a public defender, to represent Mrs.
Amatucci in her criminal case. 	Attorney O’Connor, at Mrs.
Amatucci’s request, served only as standby counsel, and appeared
at her criminal trial in that capacity. 	Mrs. Amatucci asserts
that Attorney O’Connor, despite being present at her trial,
failed to defend her, remained silent during her trial, and
denied her the effective assistance of counsel to which she is
entitled under the Sixth Amendment of the United States
Constitution. 	Mrs. Amatucci also asserts that Attorney
O’Connor’s conduct constituted legal malpractice, breach of
contract, breach of fiduciary duty, and violated the Code of
Professional Conduct.
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Discussion
I. 	Federal Constitutional Claims
Section 1983 provides a cause of action for damages for the
deprivation of a federally secured right by a person “acting
under the color of state law.” 	Doucette v. Georgetown Pub.
Sch., 936 F.3d 16, 23 (1st Cir. 2019). 	In general, a “public
defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding.” 	Polk Cty. v. Dodson, 454 U.S. 312, 325
(1981). 	A public defender can be held to have engaged in state
action for purposes of § 1983 only under limited circumstances,
none of which are present here. 	See Georgia v. McCollum, 505
U.S. 42, 54 (1992) (describing circumstances under which public
defender could be deemed to be state actor for purposes of
§ 1983).
Stripped of legal conclusions, Mrs. Amatucci’s filings fail
to demonstrate that Attorney O’Connor was acting under color of
state law at any time during his representation of her.
Accordingly, the District Judge should dismiss the federal
constitutional claims Mrs. Amatucci asserted against him in this
action.
II. 	State Law Claims
Mrs. Amatucci has failed to state any federal claim upon
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which relief might be granted against Attorney O’Connor.
Accordingly, the District Judge should decline to exercise
supplemental jurisdiction, under 28 U.S.C. § 1367, over Mrs.
Amatucci’s state law claims against Attorney O’Connor, and
should dismiss those claims without prejudice to her ability to
bring those matters in a suit in state court.
Conclusion
For the foregoing reasons, the District Judge should
dismiss the federal constitutional claims asserted against
Attorney O’Connor for failure to state a claim, and dismiss the
state law claims asserted against Attorney O’Connor without
prejudice to Mrs. Amatucci’s ability to assert those claims in a
suit brought in state court. 	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
July 27, 2022
cc: 	Josephine Amatucci, pro se
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