Amatucci v. O'Connor

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. 	Case No. 22-cv-339-JL-AJ
Public Defender Dennis O’Connor, PLLC1;
and Belknap County
REPORT AND RECOMMENDATION
Plaintiff Josephine Amatucci has filed a complaint (Doc.
No. 1/#53942) and complaint addendum (Doc. No. 3/#5851) asserting
that the defendants 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). Also before the Court are Mrs. Amatucci’s motions
seeking judgment as a matter of law, an evidentiary hearing,
and/or speedy trial. See Doc. Nos. 4/#8009, 5/#8009, 8/#8044,
9/#8177.
1 In the caption of the complaint (Doc. No. 1) in this case,
Plaintiff Josephine Amatucci identifies the defendant as “Public
Defender Dennis P. O’Connor, PLLC.” 	In a motion filed later
(Doc. No. 9), Mrs. Amatucci clarifies that Attorney O’Connor is
not a public defender, but a private attorney. 	The Court
addresses the discrepancy in the body of this Report and
Recommendation but has not altered the case caption.
2 As a courtesy to Mrs. Amatucci, the Court includes the
four-digit number she has given to her filings along with the
docket number the Court has assigned to her filings.
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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
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, Claims, and Procedural History
This action relates to Attorney Dennis P. O’Connor’s
representation of Mrs. Amatucci in a criminal prosecution in
state court in November 2019. 	Mrs. Amatucci asserts a number of
claims under federal and state law against Attorney O’Connor
including: legal malpractice, negligence, breach of contract,
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fraud, defamation, a violation of her Sixth Amendment right to
the effective assistance of counsel, and a violation of her
Fourteenth Amendment right to due process. 	Mrs. Amatucci also
identifies Belknap County as a defendant to this action,
alleging that, under Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978), Belknap County is liable for Attorney O’Connor’s
alleged malfeasance and misconduct which form the basis of the
claims asserted against him.
Mrs. Amatucci has previously filed a lawsuit in this Court
naming Attorney O’Connor as a defendant, alleging the same facts
and asserting the same claims as those alleged and asserted
against him here. 	See Amatucci v. O’Connor, No. 22-cv-273-JL
(D.N.H.) (“Case 22-273”). 	In Case 22-273, the Court dismissed
the federal constitutional claims asserted in that matter on the
basis that Attorney O’Connor, as a private individual who is not
acting under color of state law, was not liable to Mrs. Amatucci
for alleged violations of her federal constitutional rights.
See Case 22-273, Aug. 9, 2022 Order (ECF No. 6) (approving July
27, 2022 R&R (ECF No. 3)). 	Having dismissed the federal claims
in Case 22-273, the Court declined to exercise jurisdiction over
the state law claims in that matter and dismissed those claims
without prejudice to Mrs. Amatucci’s ability to assert them in a
lawsuit brought in state court. 	See id.
Mrs. Amatucci did not appeal Case 22-273 to the First
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Circuit. 	Further, her post-judgment filings in that case have
been denied. 	See Case 22-273, Aug. 9, 2023 Order.
Discussion
I. 	Claim Preclusion/Res Judicata
“Under the federal law of claim preclusion, ‘a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that action.’” 	Hatch v. Trail King Indus., Inc.,
699 F.3d 38, 45 (1st Cir. 2012) (citation omitted). 	“‘The three
elements of claim preclusion are (1) a final judgment on the
merits in an earlier proceeding, (2) sufficient identicality
between the causes of action asserted in the earlier and later
suits, and (3) sufficient identicality between the parties in
the two actions.’” Id. (citation omitted).
A. 	Attorney O’Connor
Mrs. Amatucci’s claims against Attorney O’Connor in this
case meet each element of res judicata, with respect to the
parties, causes of action, and judgments in Case 22-273. 	She is
thus barred from litigating any of the claims asserted in this
case against Attorney O’Connor. 	Accordingly, the District Judge
should dismiss the claims asserted in this case against Attorney
O’Connor.
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B. 	Belknap County
In this case (although not in Case 22-273), Mrs. Amatucci
also identified Belknap County as a defendant, asserting that
Belknap County is liable, under Monell, for Attorney O’Connor’s
alleged conduct which underlies Mrs. Amatucci’s claims in this
case. 	A Monell claim, however, only provides for municipal
liability for conduct engaged in by employees of the defendant
municipality. 	See Monell, 436 U.S. at 694. 	As Mrs. Amatucci
has emphasized in her filings, Attorney O’Connor is a private
attorney. 	He is not a Belknap County agent or employee, and
therefore Belknap County cannot be subject to liability under
Monell for any action Attorney O’Connor took with respect to his
representation of Mrs. Amatucci. 	Accordingly, the District
Judge should dismiss the claims Mrs. Amatucci has asserted in
this case against Belknap County.
Moreover, even if Attorney O’Connor were a Belknap County
employee, the claims asserted against the County in this action
would be subject to dismissal. 	That is so because, if Attorney
O’Connor were a Belknap County employee at the time he
represented Mrs. Amatucci, then Belknap County would have been
in privity with Attorney O’Connor for purposes of determining
whether her claims against the County are now precluded. 	As
stated above, a plaintiff is precluded from bringing a claim in
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a second action which could have been brought against a party or
a party’s privies in a prior action. 	Accordingly, if Attorney
O’Connor were a Belknap County employee, the claims asserted
against Belknap County in this case would be subject to
dismissal on the basis of res judicata.
II. 	Pending Motions
Mrs. Amatucci has filed four motions (Doc. Nos. 4, 5, 8, 9)
for summary judgment, judgment as a matter of law, an
evidentiary hearing, and/or a speedy trial in this case.
Because the District Judge should dismiss all of the claims
asserted in this action, the District Judge should also deny the
pending motions, which seek relief related to those claims, as
nonmeritorious.
Conclusion
For the foregoing reasons, the District Judge should
dismiss the complaint (Doc. Nos. 1, 3) in this action in its
entirety and should deny the pending motions (Doc. Nos. 4, 5, 8,
9) in this matter. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period
may be extended upon motion. 	Failure to file any objection
within the specified time waives the right to appeal the
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district court’s Order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
Only those issues raised in the objection(s) to this Report
and Recommendation “‘are subject to review in the district
court.’” 	Id. 	Additionally, any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 17, 2023
cc: 	Josephine Amatucci, pro se
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