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Maggi v. McComiskey

United States District Court, D. New Hampshire

October 23, 2017

Gregory Maggi, Plaintiff
Justine McComiskey, Defendant


          Steven J. McAuliffe United States District Judge.

         In 2014, Gregory Maggi was convicted of numerous criminal charges, including seven counts of felonious sexual assault upon a child between the age of 13 and 15, as well as multiple counts of simple assault and distribution of a controlled substance (to his victims). He was, however, acquitted of some charges arising out of that very same conduct - a fact that prompted this litigation. Maggi was sentenced to serve no less than 17 and one-half years to 35 years in prison.[1] He was also ordered to have no contact with his victims or their families. And, he was ordered to pay restitution to each of his victims in an amount not to exceed $10, 000 (although the record is unclear, it appears that there were two victims of Maggi's repeated sexual assaults). On appeal, the New Hampshire Supreme Court affirmed Maggi's convictions, observing that evidence of his guilt was “overwhelming.”

         The defendant in this case is one of Maggi's victims. From her, Maggi seeks $5 million in damages, asserting that she conspired “with authorities” to deprive him of a fair trial, in violation of 42 U.S.C. § 1985(3); maliciously prosecuted him; and defamed him, in violation of a state criminal statute. Defendant moves to dismiss each of Maggi's claims, saying none states a viable cause of action. That motion is granted.


         I. Conspiracy.

         Count one of Maggi's amended complaint alleges that the defendant violated 42 U.S.C. § 1985(3) by “conspir[ing] with authorities to deprive Mr. Maggi of his Constitutional right to a fair trial by changing her story multiple times, withholding information from the defense, and by lying to investigators.” Amended Complaint (document no. 4) at para. 22. That count fails to plausibly set forth the essential elements of a viable claim under 42 U.S.C. § 1985(3). Most notably, it lacks a plausible allegation that there was “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). See also Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 4 (1st Cir. 2012); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996); Veale v. Furness, No. 10-CV-147-JL, 2012 WL 359700, at *3-4 (D.N.H. Feb. 2, 2012).

         II. Malicious Prosecution.

         In Count Two of his complaint Maggi advances a claim for “malicious prosecution.”[2] Specifically, he alleges that the defendant “cooperated with state prosecutors to bring charges against Mr. Maggi for incidents that did not occur and should not warrant criminal charges even if they had been true.” Amended Complaint at para. 24. That claim falls short for several reasons.

         There are four elements to a viable common law claim for malicious prosecution:

(1) the plaintiff was subjected to a criminal prosecution or civil proceeding instituted by the defendant; (2) without probable cause; (3) with malice; and (4) the prior action terminated in the plaintiff's favor.

Farrelly v. City of Concord, 168 N.H. 430, 445, 130 A.3d 548, 560 (2015) (citation omitted). Maggi's amended complaint falls decidedly short and likely fails to adequately allege even a single essential element of his claim.

         First, Maggi has pointed to no New Hampshire case law holding that, for malicious prosecution purposes, a victim “initiates a criminal proceeding” by making a report to police. Second, under the circumstances of this case, Maggi's indictment by a grand jury likely precludes him from establishing that charges were filed against him without probable cause. See, e.g., Ojo v. Lorenzo, 164 N.H. 717, 727-28 (2013). See also New Hampshire v. Maggi, No. 2015-0029 (N.H. Supr. Ct. May 20, 206) at 2 (affirming Maggi's convictions and noting that another victim of Maggi's sexual assaults corroborated the defendant's claims and testified that she witnessed Maggi having sex with the defendant; the existence of probable cause to charge Maggi did not, therefore, hinge solely upon the defendant's claims). Third, it is certainly open to debate whether Maggi's amended complaint adequately alleges that the defendant acted with the requisite malice (that is, with a purpose other than bringing a criminal to justice).[3]

         But, in any event, it is plain that the criminal case against Maggi did not “terminate in his favor.” At trial, it was proved, beyond a reasonable doubt, that he repeatedly sexually assaulted the defendant, that he committed simple assault against her, and that he unlawfully provided her with controlled substances. As a consequence, he will remain incarcerated for anywhere between 17 and one-half to 35 years. Additionally, Maggi was ordered to pay the defendant restitution in an amount not to exceed $10, 000. It would strain the notions of common sense and reasonableness to conclude that the underlying criminal trial terminated in Maggi's favor. First, in the context of a malicious prosecution case, the New Hampshire Supreme Court consistently refers to the favorable termination of a “proceeding” or “action, ” not a “claim” or “count.” Consequently, one must look to the overall outcome of the “proceeding, ” rather than individually assess the import of a jury's verdict on each particular claim, count, or charge. Here, the criminal charges against Maggi all arose out of the same course of conduct - his repeated sexual assaults upon the defendant. His numerous convictions for that conduct establish that, as a matter of law, he was not wrongfully accused or prosecuted. See, e.g., Kossler v. Crisanti, 564 F.3d 181, 1873d Cir. 2009) (“Consistent with this purpose [of the ‘favorable termination' requirement], we have held that a prior criminal case must have been disposed of in a way that indicates the innocence of the accused in order to satisfy the favorable termination element.”).[4]

         And, of course, there are compelling public policy reasons to conclude that, given the particular facts of this case, the New Hampshire Supreme Court would not view Maggi's acquittal on a few of the charges against him as representing a “successful” termination of the criminal ...

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