Amatucci v. Young et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. 	Civil No. 18-cv-1227-LM
Chief Deputy Richard M. Young Jr. et al.
REPORT AND RECOMMENDATION
This court previously conducted a preliminary review of
Plaintiff Josephine Amatucci’s initial complaint (Doc. No. 1
(4220) 1 ) and three complaint addenda (Doc. Nos. 3 (4273), 5
(4256), 7 (4445)), and on August 9, 2019, issued an Order (Doc.
No. 10) directing service of this action on defendants Carroll
County Sheriff’s Department (“CCSD”) Chief Deputy Richard M.
Young Jr., CCSD Sgt. Michael Bedley, and the CCSD. 	Since then,
Mrs. Amatucci has filed a document, which the court construes as
an amended complaint (Doc. No. 11 (4521)), and the following
motions, petitions, and other documents, which the court
construes as addenda to that amended complaint:
1 Mrs. Amatucci has numbered almost all of the documents she
has filed in this case. 	When referencing the court’s docket
numbers for those documents, the court will add Mrs. Amatucci’s
number to that reference to assist her in identifying the
documents.
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 	Notice of Interlocutory Appeal (Doc. No. 15 (4522)),
 	Supplemental Documents (Doc. No. 18 (4550)),
 	Motion for Summary Judgment (Doc. No. 19 (4549)),
 	Supplement to Motion for Summary Judgment (Doc. No. 22
(4554)),
 	Petition Under Right to Know/FOIA (Doc. No. 23 (4559)),
 	Response to Magistrate Judge’s Order (Doc. No. 25 (4615)),
 	Notice of Supplement to Summary Judgment (Doc. No. 27),
 	Motion for Immediate Response to Summary Judgment (Doc. No.
33 (4678)),
 	Response to Defendants’ Objection (Doc. No. 35 (4693)),
 	“Response to Refusal of Response to Subpoena” (Doc. No. 40
(4732)),
 	Motion for Summary Judgment (Doc. No. 42 (4760)),
 	Response to Defendants’ Objection to Summary Judgment (Doc.
No. 44 (4768)),
 	Motion for Summary Judgment/Response to Notice of the Court
(Doc. No. 45 (4771)),
 	Motion for Hearing on Summary Judgment (Doc. No. 49
(4789)),
 	Supplemental Memorandum of Law in Support of Summary
Judgment (Doc. No. 50 (4793)),
 	Response to Defendants’ Objection (Doc. No. 52 (5001)),
 	Motion to Amend Document No. 49 (4789) (Doc. No. 53
(5019)),
 	“Clearly Established Evidence of Speedy Trial for Excessive
Force on Elderly” (Doc. No. 55 (5034)), and
 	“Supplement to Case Under Law” (Doc. No. 60 (5094)).
The factual and legal assertions in the initial complaint
(Doc. No. 1 (4220)), addenda to the initial complaint (Doc. Nos.
3 (4273), 5 (4256), 7 (4445)), the amended complaint (Doc. No.
11 (4521)), and the above-listed addenda to the amended
complaint, are now construed, collectively, as the operative
complaint in this matter (hereinafter, collectively, the
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“Amended Complaint”) are before the court for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2). 2
Also before the court is the defendants’ motion to dismiss (Doc.
No. 14), seeking to dismiss the original complaint. 	Mrs.
Amatucci objects to that motion to dismiss (Doc. No. 19).
Preliminary Review3
I. 	Mrs. Amatucci’s Allegations in the Amended Complaint
On September 7, 2018, Mrs. Amatucci went to the Carroll
County Attorney’s Office (“CCAO”), which is open to the public,
to file a complaint against Wolfeboro Police Department Chief
Dean Rondeau for threatening her and accusing her of a crime she
did not commit. 	As there was no receptionist at the CCAO, Mrs.
Amatucci alleges she rang a bell for service, announced the
purpose of her visit, and stated that she was in fear for her
safety as a result of Chief Rondeau’s action. 	In response, Mrs.
Amatucci was told to either send a letter or make an appointment
2 The factual assertions in the documents listed here are
construed as addenda to the amended complaint. 	To the extent
these documents are pending motions, they will be addressed
separately.
3 In conducting this preliminary review, the court applies
the standard set forth in the court’s August 19, 2019 Order
(Doc. No. 10).
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to file her complaint. 	Mrs. Amatucci alleges that she then
asked to make an appointment, and when she received no response,
rang the bell again.
Shortly thereafter, CCSD Chief Deputy Young and Sgt. Bedley
arrived at the CCAO and asked Mrs. Amatucci to leave the office.
Mrs. Amatucci alleges she told the officers she was there to
file a complaint, that she had a concern for her safety, and
that she did not want to leave without filing her complaint.
Mrs. Amatucci alleges she said she wanted to wait there until
someone came out of the CCAO to speak with her. 	Mrs. Amatucci
alleges that while she was waiting for someone to come out and
take her complaint, she unsuccessfully attempted to call the
CCAO on her cell phone to schedule an appointment to file her
complaint. 	Mrs. Amatucci also alleges that no one at the CCAO
told her to leave that office. 	See Doc. No. 50, at 3.
Mrs. Amatucci alleges that at the time the deputies
arrived, she already mistrusted and feared Chief Deputy Young,
as she felt that he had previously lied to her, and had assisted
another law enforcement officer in violating her rights. 	Chief
Deputy Young approached Mrs. Amatucci, and she alleges she rang
the bell again and pleaded for someone to come out and “get this
criminal away from me.” 	Doc. No. 1 (4273), at 3.
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Mrs. Amatucci, who was eighty years old on September 7,
2018, alleges that Chief Deputy Young then grabbed her right
arm, and squeezed and twisted it repeatedly, causing her to
scream in pain more than once, and escorted Mrs. Amatucci out of
the CCAO. 	Mrs. Amatucci alleges that while Chief Deputy Young
was squeezing and twisting her arm, and while she was screaming
in pain, Sgt. Bedley did nothing to stop or protect her from
Chief Deputy Young’s use of physical force, despite having the
opportunity to do so.
Mrs. Amatucci further alleges that she was not violent or
aggressive during her encounter with the deputies on September
7, 2018, she had not committed any crime, and she did not pose a
threat to them or anyone else at any time. 	Mrs. Amatucci
alleges that the force used against her caused her arm to turn
red and purple and form a large lump. 	Mrs. Amatucci, therefore,
went to see her primary care physician immediately after the
incident. 	Mrs. Amatucci alleges that, upon seeing her arm, a
nurse said she should go to the emergency room, and personally
accompanied her there, where Mrs. Amatucci’s arm was x-rayed,
and she was given a sling and prescription medication. 	Mrs.
Amatucci asserts that the pain in her arm was severe enough to
cost her several nights’ sleep, and that the bruising on her arm
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worsened over the next several days and resulted in a permanent
scar.
II. 	Claims
In the August 9, 2019 Order (Doc. No. 10), the court
identified the following claims for relief:
1. 	On September 7, 2018, CCSD Chief Deputy Richard
Young violated Mrs. Amatucci’s Fourth Amendment right not
to be subjected to an unreasonable seizure of her person,
by using excessive force against her in an objectively
unreasonable manner, when he grabbed, squeezed, and twisted
her arm, causing her extreme pain and injury, when Mrs.
Amatucci had not engaged in any conduct which posed a
threat to anyone, or otherwise provoked the use of force
against her;
2. 	CCSD Chief Deputy Richard Young violated Mrs.
Amatucci’s First Amendment right to petition the government
for a redress of grievances by preventing her from filing a
complaint against WPD Chief Dean Rondeau, at the Carroll
County Attorney’s Office on September 7, 2018;
3. 	CCSD Chief Deputy Richard Young’s actions during
his encounter with Mrs. Amatucci on September 7, 2018,
render him liable under state tort law for:
a. 	assault,
b. 	intentional infliction of emotional
distress, and
c. 	false imprisonment;
4. 	CCSD Sgt. Michael Bedley violated Mrs. Amatucci’s
Fourteenth Amendment right to be protected from harm by
failing to intervene when CCSD Chief Deputy Young engaged
in excessive force against Mrs. Amatucci on September 7,
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2018, despite having the ability and opportunity to do so.
5. 	The Carroll County Sheriff’s Department is liable
for the conduct of CCSD Chief Deputy Richard Young
underlying the claims asserted against Young in Claims 1-4,
as set forth above, this action, based on a theory of
municipal liability, as Deputy Young is a CCSD policymaker,
and his actions which are alleged to have violated Mrs.
Amatucci’s rights thus constituted official CCSD policy,
practice or custom.
6. 	Wolfeboro Police Chief Dean Rondeau threatened
Mrs. Amatucci and accused her of a crime she did not
commit.
The court directed service of Claims 1-5 on Chief Deputy
Young, Sgt. Bedley, and the CCSD. 	As to Claim 6, the court
found Mrs. Amatucci had failed to state a claim for relief
against Chief Dean Rondeau and granted her leave to amend her
complaint to do so. 	In the Amended Complaint Mrs. Amatucci has
notified the court that:
 	she does not wish to name Chief Rondeau as a defendant to
this action, see Doc. No. 11 (4521), at 1;
 	she did not intend, and does not wish, to assert any claims
under state law, see Doc. No. 15 (4522), at 3-4;
 	she wishes to add the Carroll County Commissioners as
defendants, see Doc. No. 11 (4521), at 3; and
 	Claim 5 arises under Monell v. Dep’t of Soc. Servs., 436
U.S. 658 (1978), see Doc. No. 11 (4521), at 1-2.
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III. Discussion
A. 	42 U.S.C. § 1985
Mrs. Amatucci has asserted that her claims in this case
arise under 42 U.S.C. § 1985 as well as under § 1983. 	See Doc.
No. 1 (4220), at 1. 	Section 1985 provides a cause of action for
a civil rights conspiracy. 	To state a civil rights conspiracy
claim under § 1985, a plaintiff must allege, in addition to
interference with a federally protected right, that acts taken
in furtherance of the conspiracy subjected her to race
discrimination or other class-based discrimination. 	See Boyle
v. Barnstable Police Dep’t, 818 F. Supp. 2d 284, 318 (D. Mass.
2011). 	There are no allegations in the complaint that state a
claim of race discrimination or any other discrimination
targeting a protected class. 	Accordingly, the district judge
should dismiss Mrs. Amatucci’s claims to the extent they are
asserted under § 1985.
B. 	Claim Against Chief Rondeau (Claim 6)
Mrs. Amatucci has filed, in her Amended Complaint, notice
to the court that she does not wish to assert any claim against
Chief Rondeau in this case. 	See Doc. No. 11 (4521), at 1.
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Accordingly, the district judge should dismiss Claim 6 and drop
Chief Rondeau as a defendant in this action, without prejudice.
C. 	Claims Arising Under State Law (Claims 3(a)-(c))
Mrs. Amatucci has stated, in the Amended Complaint, that
she neither intended nor wishes to assert claims in this case
which arise under state law. 	See, e.g., Doc. No. 19 (4549), at
1-2, 5-6). 	Accordingly, the district judge should dismiss
Claims 3(a)-(c) without prejudice.
D. 	Monell Claim (Claim 5)
“[W]hen execution of a [local] government’s policy or
custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy,
inflicts the injury,” then “the [local] government as an entity”
may be held responsible for the injury under § 1983. 	Monell,
436 U.S. at 694. 	Mrs. Amatucci alleges here that Chief Deputy
Young, at the time of the events underlying this action, had
policymaking authority at the CCSD, a municipal entity, and that
therefore his actions can be fairly said to represent, and
result from, an official Carroll County policy, custom, or
practice. 	As Mrs. Amatucci’s claims, to the extent they are
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asserted against Chief Deputy Young, the CCSD, and the Carroll
County Commissioners, in those defendants’ official capacities,
allege liability of the municipality for the officers’ conduct,
the court amends and replaces Claim 5 with the following claim
that this court identifies as “Claim 5A,” as follows:
5A. 	The Carroll County Sheriff’s Department, the Carroll
County Commissioners, and CCSD Chief Deputy Richard Young,
in their official capacities, are liable for the conduct of
CCSD Chief Deputy Richard Young and CCSD Sgt. Michael
Bedley underlying Claims 1, 2, and 4, as set forth above,
based on a theory of municipal liability under Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978), as Chief Deputy
Young is a CCSD policymaker, and his actions which are
alleged to have violated Mrs. Amatucci’s rights thus
constitute and are the result of official CCSD policy,
practice, or custom.
To the extent Mrs. Amatucci asserts claims against the Carroll
County Commissioners in their individual capacities, the
district judge should dismiss those claims as she has failed to
state any facts to demonstrate that those defendants personally
engaged in any act which violated Mrs. Amatucci’s federal
constitutional rights.
E. 	“Background” Facts are Not Findings of Fact
In its August 9, 2019 Order (Doc. No. 10), the court stated
that, to the extent it allows claims to proceed against any
defendant after preliminary review:
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the court finds only that those claims are
sufficiently stated to allow Mrs. Amatucci to initiate
this action, and to require the defendants to respond
to the complaint after they are served. 	At this early
stage of the proceedings, the court does not make any
finding as to whether Mrs. Amatucci is likely to
succeed on her claims in this matter, or as to the
merits of her claims or any defenses the defendants
may raise as to those claims.
Aug. 9, 2019 Order (Doc. No. 10, at 6-7). 	Despite that
statement, Mrs. Amatucci, in her Amended Complaint, has claimed
that the court’s statement of “Background” facts in the August
9, 2019 Order constitutes the court’s finding that those facts
are true and need not be proven at trial. 	See, e.g., Doc. No.
49 (4789), at 1 (“the Magistrate has already determined []
“FINDING OF FACT [] in this case in her ORDER issued August 9,
2019. 	Where the Magistrate ALREADY made findings of the
Plaintiff’s . . . VIOLATIONS OF HER CIVIL RIGHTS.”); id. at 3-4
(“[I]n her ORDER of August 9, 2019 Magistrate Judge Johnstone
already . . . ‘PROPOSED HER FINDINGS OF FACT’ . . . and ALREADY
determined that the Plaintiff’s claims . . . CAN PROCEED.”).
Mrs. Amatucci is mistaken.
The court now emphasizes that, at this preliminary stage of
the case, the court does not make any finding as to whether the
facts Mrs. Amatucci has alleged will be proven, or whether Mrs.
Amatucci will be able to succeed on the merits of her claims in
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this matter. 	Additionally, despite Mrs. Amatucci’s assertions
to the contrary, the “Background” facts set forth in the August
9, 2019 Order, like the “Allegations in the Complaint” section
of this Report and Recommendation (“R&R”), are not findings of
fact; they are only a summary of the facts Mrs. Amatucci has
asserted in her Amended Complaint.
Motion to Dismiss
Since the defendants filed their motion to dismiss (Doc.
No. 14) Mrs. Amatucci’s initial complaint, she has filed
numerous addenda to the Amended Complaint, as listed in this
R&R. 	Under this court’s local rules,
When a plaintiff files an amended complaint as of
right or with leave of court after the filing of a
motion to dismiss for failure to state a claim, the
motion to dismiss shall be automatically denied
without prejudice and the defendant(s) shall respond
to the amended complaint as may be appropriate under
Fed. R. Civ. P. 12, within the time allowed under Fed.
R. Civ. P. 15(a).
LR 15.1(c).
LR 15.1(c) prevents the litigation of a motion to dismiss a
complaint which is no longer the operative complaint in this
matter. 	Although Mrs. Amatucci’s initial amended complaint
(Doc. No. 11 (4521)) was filed before the defendants filed their
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motion to dismiss, all of the addenda to Document No. 11 were
filed after the motion to dismiss. 	Further, the motion to
dismiss makes no reference to any documents which were filed
after the initial complaint documents (Doc. Nos. 1 (4220), 3
(4273), 5 (4256), 7 (4445)). 	Accordingly, to avoid expending
resources on matters that have been superseded by later filings,
it is appropriate for the district judge to deny the defendants’
motion to dismiss the initial complaint, without prejudice,
under LR 15.1(c).
Conclusion
For the reasons explained above, the undersigned magistrate
judge recommends that the District Judge:
1. 	dismiss all claims that are asserted by Mrs.
Amatucci under 42 U.S.C. § 1985, for failure to state a
claim upon which relief can be granted;
2. 	dismiss Claims 3(a)-(c) from this action, without
prejudice;
3. 	dismiss Claim 6 from this action and drop Chief
Dean Rondeau as a defendant, without prejudice;
4. 	dismiss without prejudice the claim previously
identified as Claim 5, and replace that dismissed claim
with Claim 5A, as identified in this Report and
Recommendation;
5. 	add the Carroll County Commissioners and CCSD
Chief Deputy Young as defendants in their official
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capacities;
6. 	dismiss Mrs. Amatucci’s claims asserted against
the Carroll County Commissioners in their individual
capacities; and
7. 	deny the defendants’ motion to dismiss (Doc. No.
14), without prejudice, and without expressing any opinion
on the merits of that motion.
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). 	That period may be extended upon motion.
Failure to file 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
August 21, 2020
cc: 	Josephine Amatucci, pro se
Dona Feeney, Esq.
Thomas M. Closson, Esq.
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