United States District Court, D. New Hampshire
Josephine Amatucci, pro se Daniel J. Mullen, Esq. Mark H.
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
the court for preliminary review are complaint addenda (Doc.
Nos. 27-31, 33-43, 45, 50, 51, 53, 54, 56, 61, 66-71) filed
by plaintiff, Josephine Amatucci. See LR 4.3(d)(2).
Also before the court are Mrs. Amatucci's motions: for an
expedited jury trial (Doc. No. 32); to clarify (Doc. Nos. 46,
47); to amend the complaint (Doc. Nos. 49, 60, 72); and for
summary judgment and/or directed verdict (Doc. Nos. 55,
Issues Already Decided
large part, Mrs. Amatucci's filings at issue in this
Report and Recommendation (“R&R”) either
reassert claims that have been dismissed from this action,
are asserted against defendants already dropped from this
case, or reiterate arguments that have been rejected by the
court. With the exception of matters specifically discussed
in this R&R, Mrs. Amatucci's factual assertions and
legal arguments are neither new nor more persuasive upon
repetition. To the extent Mrs. Amatucci seeks, in any of her
filings, to assert claims that have already been dismissed
from this case, or to add defendants that are not presently
in the case, the district judge should deny those requests.
Malicious Prosecution Claims
filings, Mrs. Amatucci repeatedly asserts that she wants
Fourth Amendment malicious prosecution claims to proceed in
this matter against the Town of Wolfeboro
(“Town”) and/or Town officials in their official
capacities. In Monell v. Dep't of Soc. Servs.,
the Supreme Court authorized a suit against a town, under 42
U.S.C. § 1983, for a constitutional violation where
“action pursuant to official municipal policy of some
nature caused a constitutional tort.” 436 U.S. 658, 691
(1978). Mrs. Amatucci alleges that, under the Fourth
Amendment, the Town is liable to her for the malicious
prosecution for speeding at issue in this case, because that
prosecution was the effectuation of “de facto”
municipal policies to ignore police misconduct and police
misconduct complaints, and to violate Mrs. Amatucci's
rights when she complained about the Wolfeboro Police
Department (“WPD”) and Town officers. Mrs.
Amatucci has stated the minimum facts necessary to state a
Fourth Amendment malicious prosecution claim against the Town
under Monell. Accordingly, in an Order issued this
date, the court directs that the Monell claim be served on
the Town, and further directs the defendants to answer that
Amatucci asserts that the court has not considered her claim
challenging her pretrial “detention” that
allegedly began on May 7, 2014 and lasted through the
criminal prosecution at issue here. Mrs. Amatucci's claim
that she was detained, due to “the wrongful institution
of legal process, ” is properly brought as a Fourth
Amendment malicious prosecution claim. See Filler v.
Kellet, 859 F.3d 148, 152 n.2 (1st Cir. 2017)
(recognizing Fourth Amendment malicious prosecution claim for
unlawful pretrial detention); Hernandez-Cuevas v.
Taylor, 836 F.3d 116, 123 (1st Cir. 2016) (same).
Accordingly, a Fourth Amendment malicious prosecution claim
based on Mrs. Amatucci's pretrial detention may proceed
in this matter. In an Order issued simultaneously with this
Report and Recommendation, the court will direct the
defendants to answer that claim.
State Law Claims
action, Mrs. Amatucci has indicated that she wants to proceed
on Fourth Amendment malicious prosecution claims rather than
under a state tort theory of malicious prosecution. The court
previously ruled in this matter that both her Fourth
Amendment malicious prosecution claims and her state
law tort claims for malicious prosecution may proceed in this
case against each of the defendants upon whom this court has
directed service. If Mrs. Amatucci wants to proceed only on
her Fourth Amendment claims, and forego litigating the
malicious prosecution claims she has asserted under state
law, she must move to dismiss or withdraw those claims from
Amatucci seeks to amend her complaint to add WPD prosecutor
Timothy Morgan, who prosecuted her for speeding on May 7,
2014, as a defendant to her malicious prosecution claims.
Specifically, Mrs. Amatucci alleges that Morgan failed to
produce, either to Mrs. Amatucci or at trial, the
“true” video of what occurred in the WPD lobby on
May 7, 2014, between Mrs. Amatucci and then WPD Chief Stuart
Chase which, she alleges, would have exculpated her. Mrs.
Amatucci alleges that Morgan, instead, fraudulently, produced
a different video, both in discovery and to the court, which
Morgan represented to be the “true” May 7, 2014
WPD lobby video.
are entitled to absolute immunity from claims arising out of
their “prosecutorial actions that are ‘intimately
associated with the judicial phase of the criminal
process.'” Van de Kamp v. Goldstein, 555
U.S. 335, 341 (2009) (quoting Imbler v. Pachtman,
424 U.S. 409, 430 (1976)). “The Imbler rule
has been applied where prosecutors failed to disclose
exculpatory evidence specifically requested by the defense,
and where prosecutors misled the trial court in order to
conceal their failure to disclose exculpatory
evidence.” Reid v. New Hampshire, 56 F.3d 332,
336-37 (1st Cir. 1995) (internal citations omitted).
Amatucci's assertions about Morgan's failure to
provide the correct video, either to her or to the trial
court, therefore, do not state a claim that may proceed
against Morgan. Accordingly, the district judge should deny
Mrs. Amatucci's request to assert a malicious prosecution
claim against Morgan.
motion to amend (Doc. No. 60), Mrs. Amatucci has asked that
this action not proceed against defendant James O'Brien.
The District Judge should grant ...