Amatucci v. Wolfeboro, NH, Town of et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci
v. Civil No. 20-cv-449-JL
Town of Wolfeboro, et al.
REPORT AND RECOMMENDATION
Josephine Amatucci, who is proceeding pro se and in forma
pauperis, has filed a complaint (Doc. No. 1, #4767) and
complaint addenda (Doc. Nos. 4, 6, 10, 13, 16)1 against the Town
of Wolfeboro (“Town”), Wolfeboro Police Department (“WPD”) Chief
Dean Rondeau, WPD Prosecutor Timothy Morgan, Belknap County
Sheriff’s Department (“BCSD”) Sgt. William Wright, BCSD
Prosecutor Judy Estes, and Town Employees Steve Champaign and
Robert Maloney. The complaint 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 for consideration, and a
1Plaintiff has identified the documents which the court has
construed as addenda to the complaint as follows: “Plaintiff’s
Recommendation to Magistrate Judge” (#5011), “Supplement for
Files/Found Not Guilty” (#5101), “A Summary of Complaint” (Doc.
No. 10), “Motion to Amend/Motion to Add New Defendant” (Doc. No.
16) (#5363), “Supplemental Evidence of Fraud On/Upon the Court”
(#5397). The complaint addenda, and the attachments to the
complaint and complaint addenda, are treated as part of the
complaint in this matter for all purposes.
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recommendation as to disposition, is Mrs. Amatucci’s motion
seeking in forma pauperis status (Doc. No. 12).
Standard of Review
The court conducts a preliminary review of complaints filed
by pro se litigants proceeding in forma pauperis. See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). In considering whether a pro se
complaint states a claim, the court construes the pleading
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). The court then 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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Claims may be dismissed, sua sponte, if the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2).
Background
In August 2018, Mrs. Amatucci was involved in an incident
at the Town dump in which she was accused and criminally charged
with pushing Town dump employee Robert Maloney. Mrs. Amatucci
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alleges that WPD Chief Rondeau asked the BCSD to investigate the
incident, and that BCSD Sgt. Wright investigated the matter.
Mrs. Amatucci was subsequently charged with assault, and
that charge was prosecuted by BCSD Prosecutor Judy Estes. See
State v. Amatucci, No. 464-2018-CR-01490 (N.H. Cir. Ct., 3d
Cir., Dist. Div. – Ossipee (“Ossipee District Court”))
(“Amatucci Crim. Case”). The trial on the assault charge was
held in November 2019, and she was found guilty.2 See id. Mrs.
Amatucci has since challenged her conviction without success.
In this complaint, Mrs. Amatucci alleges that the
defendants here conspired to subject her to false arrest and
malicious prosecution in violation of the Fourteenth Amendment.
She further alleges that the defendants conspired to cause her
to be arrested without probable cause in violation of the Fourth
Amendment. Finally, she alleges that because the prosecutor,
prior to trial, nol prossed the original simple assault charge
against her, which had charged her with causing bodily injury to
Mr. Maloney, and substituted it with a complaint charging her
with simple assault by causing unprivileged physical contact to
2Mrs. Amatucci argues here that she was not found guilty
because she was only sentenced to anger management counseling.
She is mistaken. The Ossipee District Court found her guilty on
November 21, 2019. See Amatucci Crim. Case. The court imposed
a fine that was suspended on her good behavior and she was also
required to attend anger management counseling. Id.
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Mr. Maloney, that she was subjected to double jeopardy in
violation of her Fifth and Fourteenth Amendment rights.3
Mrs. Amatucci previously brought an action in this court
asserting claims, including claims raised again in this case,
against some of the same defendants sued here, as well as
related defendants, based on the same August 2018 dump incident
and November 2018 prosecution which underlie her claims here.
See Amatucci v. Town of Wolfeboro, 19-cv-531-JD (D.N.H.). That
case has been dismissed on preliminary review for failure to
state a cause of action on which relief may be granted. See id.
(Mar. 2, 2020).4 Mrs. Amatucci did not file an appeal in that
matter. In this case, Mrs. Amatucci again challenges her arrest
3Mrs. Amatucci misunderstands what is required to state a
double jeopardy claim alleging that she has been prosecuted
twice for the same offense. Because the first complaint against
Mrs. Amatucci was nol prossed prior to the Ossipee District
Court hearing any evidence in her criminal trial, she was never
placed in jeopardy of being convicted on the first complaint.
See United States v. Santiago-Colón, 917 F.3d 43, 55 (1st Cir.
2019) (“‘jeopardy ‘attaches’ when a trial commences; that is, .
. . in a bench trial, when the judge begins to hear evidence.’”
(citations omitted)). Thus, Mrs. Amatucci’s conviction on the
second complaint does not violate her double jeopardy rights.
4Mrs. Amatucci has also brought suit against the judge who
presided in the Ossipee District Court criminal case against her
concerning the dump incident. See Amatucci v. Greenhalgh, 21-
cv-238-JL (D.N.H.).
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and prosecution on the assault charge, alleging violations of
her Fourth, Fifth, and Fourteenth Amendment rights.
Discussion
“Under the federal law of claim preclusion, a final
judgment on the merits of an action precludes the parties or
their privies from relitigating claims that were raised or could
have been raised in that action.” Hatch v. Trail King Indus.,
699 F.3d 38, 45 (1st Cir. 2012). “Claim preclusion applies if
(1) the earlier suit resulted in a judgment on the merits, (2)
the causes of action asserted in the earlier and later suits are
sufficiently identical or related, and (3) the parties in the
two suits are sufficiently identical or closely related.”
Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir.
2010). A dismissal for failure to state a claim on which relief
may be granted is a judgment on the merits for purposes of res
judicata. See, e.g., Lee v. BAC Home Loans Servicing, LP, No.
20-CV-10434-DJC, 2021 U.S. Dist. LEXIS 43098, at *1-*2, 2021 WL
847990, at *1 (D. Mass. Mar. 5, 2021); Andrews-Clarke v. Lucent
Techs., Inc., 157 F. Supp. 2d 93, 99 (D. Mass. 2001).
In the prior suit, Mrs. Amatucci sued the Town, Prosecutor
Morgan, Chief Rondeau; Sgt. Wright, and the BCSD. See Amatucci,
19-cv-531-JD, ECF No. 7, at *2. She alleged four claims in that
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complaint. “In claim one, she alleges ‘an unlawful seizure, a
violation of the Fourth Amendment’ and that the defendants had a
‘secret and evil plan . . . to do something unlawful and
harmful, to an 80 year old elderly person.’” Id. at *3. “In
claim two, she alleges an unlawful seizure and false charges
with an improper purpose, naming Morgan and Rondeau. Claim
three is ‘unlawful conspiracy,’ and claim four seeks “Damages as
appropriate.” Id. All of her claims were dismissed for failure
to state a cognizable cause of action. Id. at *5. Judgment was
entered against her on March 3, 2020.
She raises the same or similar claims in this case. The
parties are the same or related to the parties in the prior
suit. To the extent she raises any new theory or claim, all of
her claims arise from the same incidents that were the subject
of the prior suit, and could have been brought in that suit. As
final judgment on the merits has been entered against her in the
previous suit, her claims here are barred by res judicata.
Motion for In Forma Pauperis Status
Mrs. Amatucci has filed a motion for in forma pauperis
status (Doc. No. 12). Mrs. Amatucci has already been granted in
forma pauperis status in this case. See Apr. 30, 2020 Order.
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Accordingly, the district judge should deny the motion for in
forma pauperis status as moot.
Conclusion
For the foregoing reasons, the district judge should
dismiss Mrs. Amatucci’s complaint (Doc. Nos. 1, 4, 6, 10, 13,
16) as barred by res judicata, and deny her motion for in forma
pauperis status (Doc. No. 12). 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 objections
within the specified time waives the right to appeal the
district court’s order. Santos-Santos v. Torres-Centeno, 842
F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 2, 2021
cc: Josephine Amatucci, pro se.
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