Amatucci v . Hamilton, et a l . 05-CV-259-SM 06/25/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Josephine Amatucci, Plaintiff
v. Civil N o . 05-cv-259-SM Opinion N o . 2007 DNH 080 Officer Charles Hamilton and Officer James O’Brien, Defendants
O R D E R
Pro se plaintiff Josephine Amatucci brings this action
seeking damages for alleged violations of her constitutionally
protected rights. See generally 42 U.S.C. § 1983. Specifically,
Amatucci claims defendants violated her Fourth Amendment rights
when, in order to obtain warrants for her arrest in 2002 and
again in 2003, they withheld exculpatory information from the
issuing judge. She also advances state common law claims of
intentional infliction of emotion distress, negligent infliction
of emotional distress, battery, and malicious prosecution.
Pending before the court are the parties’ cross-motions for
summary judgment. For the reasons set forth below, defendants’
motion is granted and plaintiff’s motion is denied. Standard of Review
When ruling on a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 1 1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Int’l Ass’n of
Machinists & Aerospace Workers v . Winship Green Nursing Ctr., 103
F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party’s “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
be granted.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-
50 (1986) (citations omitted). The key, then, to defeating a
properly supported motion for summary judgment is the non-
movant’s ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
2 by the moving party. See generally Fed. R. Civ. P. 56(e). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore bald
assertions, unsupported conclusions, and mere speculation. See
Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997).
Background
I. The August 2002 Incident.
On August 1 6 , 2002, Mrs. Amatucci was concerned that a
neighbor - Kelly Fitzgerald - had parked her car on Amatucci’s
property. S o , Amatucci asked that it be moved. According to
Amatucci, the neighbor’s young son (a boy who appeared too young
to legally operate a motor vehicle) eventually got into the car,
attempted to move it forward, and struck a cement block that was
on the ground. Pieces of the broken block then wedged into the
car’s wheel well, rendering it inoperable, despite the boy’s
efforts to move it forward. Amatucci claims that when the car’s
owner discovered the problem, she and her friends and/or family
members confronted Amatucci, blamed her for the damage to the
vehicle, and, eventually, assaulted her. Amatucci summoned the
police.
3 Officer Charles Hamilton of the Wolfeboro Police Department
responded to the call. When Hamilton arrived at the scene,
Amatucci complained that the neighbor’s car was parked on her
property. Hamilton informed her that the car was actually on the
State’s right-of-way, adjacent to the road. He took measurements
to confirm his belief that the car was legally parked. While
doing s o , he noticed that pieces of a broken cement block were
lodged on top of the car’s wheel and/or wedged into the wheel
well. He then interviewed and obtained written statements from
five other witnesses to the incident, all of whom told
essentially the same story - one that was decidedly inconsistent
with Mrs. Amatucci’s.
In sum, those witnesses said that Mrs. Fitzgerald, not her
minor son, attempted to move the car and, when she did, it was
damaged when it struck the cement block. One witness told
Officer Hamilton that shortly before Fitzgerald attempted to move
the car, she saw Mrs. Amatucci at the front of the car, “fiddling
around” with something. Uniform Witness Statement of Pamela
DiFraia, Document n o . 53-4, at 1 0 . Another reported that he had
seen Amatucci carrying a cement block near the car shortly before
Mrs. Fitzgerald attempted to move i t . Uniform Witness Statement
of Robert Marston, Document n o . 53-4 at 8 . Plainly, those
4 witnesses’ observations (if true) suggest that Amatucci
deliberately placed the block on the car’s tire or directly in
the car’s path shortly before asking the owner to move i t . See
also Incident Report prepared by Officer Hamilton, Document n o .
53-4 at 3 (reporting that Mrs. Fitzgerald told him that when she
parked the car, there was not a cement block on the ground near
the vehicle). Witnesses also told Hamilton that Amatucci, rather
than any of the other people present, had been the aggressor and
kicked a woman who was present during the events in question.
Based on his observations at the scene, and given the
witness accounts of what had transpired, Officer Hamilton
concluded that Amatucci had committed a simple assault and
criminal mischief. Subsequently, he sought a warrant for
Amatucci’s arrest on those charges. In support of his request
for the arrest warrant, Hamilton presented the magistrate with an
affidavit in which he summarized his own observations, as well as
the statements he had obtained from the various witnesses. He
also appended to that affidavit his entire investigative file,
including complete copies of all the witness statements he had
obtained.
5 Officer Hamilton recounted, among other things, Mrs.
Amatucci’s version of the events, noting that “Josephine Amatucci
told me that Mrs. Fitzgerald’s car and Mrs. Silvestri were
trespassing on her property [and] that M s . Fitzgerald had driven
over the concrete block that she (Amatucci) had placed over a
broken metal post.” Document n o . 53-5 at para. 5 . Hamilton went
o n , however, to express his own assessment that, in light of his
observations at the scene and the several witness statements that
contradicted Mrs. Amatucci’s version of the events, Amatucci was
not being entirely truthful. Hamilton stated “It is my opinion
that if Mrs. Fitzgerald’s vehicle had struck the concrete block
it would not have been able to lodge on top of the vehicle’s
tire.” Id.
Based on Officer Hamilton’s submissions, the magistrate
issued a warrant for Amatucci’s arrest and, on November 7 , 2002,
Officer Hamilton went to Mrs. Amatucci’s home to serve it upon
her. But, rather than taking Amatucci into custody, Hamilton
offered to allow her to drive herself to the police station, so
she could drive herself home after the booking process. Amatucci
availed herself of that offer. Subsequently, when the witnesses
subpoenaed by the prosecutor failed to appear for trial, the
court dismissed the charges against Mrs. Amatucci.
6 II. The November 2003 Incident.
As the Magistrate Judge observed in his Report and
Recommendation:
Amatucci’s friction with her neighbors was not limited to Kelly Fitzgerald’s relatives. Amatucci also had difficulty with neighbors on the other side of her property, Pauline and Robert Maloney, regarding neighborhood parking. Further, Amatucci has had disputes with Norman Bolduc, who lives behind her, regarding two outbuildings Amatucci claims that she owns but that are located on Bolduc’s property as well as Bolduc’s parking his golf cart in such a manner as to infringe Amatucci’s property. Bolduc is Pauline Maloney’s brother.
Document n o . 12 at 7-8. Eventually, the Maloneys and Amatucci
sought mutual restraining orders. On November 1 2 , 2003, the
parties appeared in state court for a hearing on those requests.
The judge granted both requests and, from the bench, told both
parties that they could have no contact with each other or any
members of their respective families. See Transcript of hearing
(document n o . 1 - 2 ) , Exhibit 14 at 8-9. The next day, the court
issued its written order, which provided that “the parties are
enjoined from having any contact or communication with the other
respective party by any means or with that [party’s] relatives or
members of that [party’s] household.” Document n o . 53-8
(emphasis in original).
7 On November 1 5 , 2003, M r . Bolduc received a letter from
Amatucci referencing their ongoing property dispute and demanding
that he pay her $1,000 or she would bring suit against him.
Believing that Amatucci had violated the court’s order, M r .
Bolduc and his sister, Mrs. Maloney, went to the police station
to file a complaint. There, they spoke with Officer James
O’Brien. After reviewing the relevant evidence, O’Brien
determined there was probable cause to believe that, by sending
the letter to Bolduc, Amatucci had violated the court’s
protective order - that is to say, she knowingly and
intentionally initiated contact with a member of Maloney’s family
(i.e., her brother). Accordingly, he prepared and submitted an
affidavit in support of a warrant for Amatucci’s arrest. That
warrant issued on December 2 , 2003.
Shortly thereafter, Officers O’Brien and Hamilton went to
Mrs. Amatucci’s home to serve the warrant. Because she was
accused of having violated a protective order, state law required
the officers to take her into custody, which they did. See
generally N.H. Rev. Stat. Ann. 173-B:9 I ( a ) . She asked the
officers to unlock the door to her house so the guests she was
expecting could let themselves i n . The officers complied and
then transported her to the Carroll County House of Corrections
8 without incident. While she was detained at the house of
corrections, Amatucci claims she was subjected to a battery when
corrections officers searched her (presumably during the intake
process). Although she did not name those corrections officers
as defendants, she seeks to hold Officers Hamilton and O’Brien
liable for that alleged battery.
Discussion
I. Fourth Amendment Claims.
As to her arrest in 2002, Amatucci asserts that Officer
Hamilton secured the underlying arrest warrant by knowingly or
recklessly failing to provide the issuing magistrate with
material exculpatory facts - facts which, if disclosed, she
claims would have undermined any finding of probable cause to
arrest (i.e., her version of the events in question). She makes
a similar claim against Officer O’Brien with regard to her arrest
in 2003, claiming that he knew or should have known that, when
she mailed the letter to M r . Bolduc (allegedly in violation of
the protective order): (1) she had not yet received a copy of the
court’s detailed written order; and (2) at the hearing, the court
told her only that she could have no contact with any of the
Maloney “family members” - a phrase she says is limited to
9 “household members” and, therefore, does not apply to M r . Bolduc
(who does not live in his sister’s home).
The Court of Appeals for the First Circuit has discussed the
governing legal principles in this area at length.
A Fourth Amendment violation may be established if a plaintiff can show that officers acted in reckless disregard, with a high degree of awareness of the probable falsity of statements made in support of an arrest warrant. Similarly, the intentional or reckless omission of material exculpatory facts from information presented to a magistrate may also amount to a Fourth Amendment violation. Reckless disregard for the truth in the submission of a warrant application may be established where an officer in fact entertained serious doubts as to the truth of the allegations or where circumstances evinced obvious reasons to doubt the veracity of the allegations in the application. In the case of allegedly material omissions, recklessness may be inferred where the omitted information was critical to the probable cause determination.
Burke v . Town of Walpole, 405 F.3d 6 6 , 81 (1st Cir. 2005)
(citations and internal punctuation omitted).
Given the undisputed facts of record, both Officer Hamilton
and Officer O’Brien are entitled to judgment as a matter of law
as to Amatucci’s Fourth Amendment claims. When Officer Hamilton
sought a warrant for Amatucci’s arrest in 2002, he submitted to
the issuing magistrate not only a description of what he observed
10 at the scene and the conclusions he drew from the evidence, but
also the written witness statements from each of the eyewitnesses
and a statement summarizing Mrs. Amatucci’s version of events.
He was not required to do anything more.
With regard to Amatucci’s arrest in 2003, Officer O’Brien
was not obligated to adopt Amatucci’s overly narrow
interpretation of the phrase “family members” and reasonably
concluded that she had violated the court’s protective order by
initiating contact with a member of Mrs. Maloney’s family - that
i s , her brother, M r . Bolduc. Even if Amatucci had not yet
received a copy of the court’s written protective order when she
sent the letter to Bolduc, the court orally informed her at the
hearing that she was enjoined from contacting Mrs. Maloney and
any members of her family. Transcript of hearing (document n o .
1 - 2 ) , Exhibit 14 at 8 (“In other words, you would stay - you
would have no contact or communication with either her [i.e.,
Mrs. Maloney] or a member of her family.” (emphasis supplied)).
Plainly, Officer O’Brien had probable cause to believe Amatucci
violated that protective order.
11 II. State Law Claims.
Having resolved Amatucci’s federal claims in favor of
defendants, the court must next determine whether it is
appropriate to exercise supplemental jurisdiction over her state
law claims. Given that discovery has closed, the parties have
submitted dispositive motions, the case is scheduled for trial in
approximately three weeks, and plaintiff’s claims do not raise
any novel or complex issues of state law, the court concludes
that, in the exercise of its discretion, it is appropriate to
address plaintiff’s state law claims. See generally 28 U.S.C. §
1367(c). See also Camelio v . American Fed’n, 137 F.3d 666, 672
(1st Cir. 1998) (discussing four factors courts should consider
when determining whether to exercise supplemental jurisdiction
over state law claims).
Amatucci’s malicious prosecution claim fails as a matter of
law because, among other things, defendants had probable cause to
believe that she had engaged in the criminal conduct with which
she was charged in 2002 and again in 2003. See generally Stock
v . Byers, 120 N.H. 8 4 4 , 846 (1980) (“To succeed in an action for
malicious prosecution, the plaintiff must prove that he was
subjected to a criminal prosecution instituted by the defendant
without probable cause and with malice, and that the criminal
12 proceeding terminated in his favor.”) (emphasis added) (citation
and internal punctuation omitted). Moreover, even viewing the
record before the court in the light most favorable to Amatucci,
a reasonable, properly instructed jury could not conclude that
either defendant was motivated by malice in bringing charges
against her.
Amatucci’s battery claim fares no better. In support of
that claim, she asserts that “without [her] consent, defendants
intentionally, harmfully, and offensively touched Plaintiff by
handcuffing her.” Amended complaint (document n o . 35) at para.
36. See also Plaintiff’s memorandum in support of summary
judgment (document n o . 58) at 1 3 . As the court of appeals for
this circuit has observed, the common law tort of battery “did
not require proof that the defendant intended to injure another
or to threaten her with harm. The slightest willful offensive
touching of another constituted a battery[,] regardless of
whether the defendant harbored an intent to do physical harm.”
United States v . Bayes, 210 F.3d 6 4 , 68 (1st Cir. 2000).
Presumably, most citizens would agree that being handcuffed
is an unpleasant, and even an “offensive” form of touching. But,
when undertaken as part of a lawful arrest and when done without
13 employing unreasonable or excessive force, handcuffing is a
privileged touching and, therefore, not actionable. See N.H.
Rev. Stat. Ann. 627:5 I (“A law enforcement officer is justified
in using non-deadly force upon another person when and to the
extent that he reasonably believes it necessary to effect an
arrest or detention.”). See also Graham v . Connor, 490 U.S. 386,
396 (1989) (“Our Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect i t . ” ) . Here,
Amatucci does not claim that the officers used excessive force in
handcuffing her or that she sustained any injuries; she simply
claims that she was subjected to an unwanted and offensive
contact when the officers handcuffed her. Without more, however,
the mere fact that the officers handcuffed Amatucci incident to a
lawful arrest does not give rise to a viable claim for battery.
Next, Amatucci claims that defendants are vicariously liable
for the alleged battery upon her at the house of correction. See
Plaintiff’s memorandum (document n o . 76) at 17 (“Defendants
indirectly caused an unknown officer at the Carroll County Jail
to intentionally, harmfully, and offensively touch Plaintiff when
strip-searching her.”). Amatucci has, however, not pointed to
14 any facts which, even if credited as true, would support imposing
liability on the police officers for injuries Amatucci may have
sustained at the county house of corrections. Defendants are,
then, entitled to summary judgment as to that claim as well.
Finally, defendants are entitled to judgment as a matter of
law as to Amatucci’s claims for intentional and negligent
infliction of emotional distress. With regard to the former, the
New Hampshire Supreme Court has adopted the provisions of section
46 of the Restatement (Second) of Torts and recognized that
“[o]ne who by extreme and outrageous conduct intentionally causes
severe emotional distress to another is subject to liability for
that emotional distress.” Konefal v . Hollis/Brookline Coop. Sch.
Dist., 143 N.H. 256, 260 (1998) (citation omitted). To prevail
on a claim of intentional infliction of emotional distress, a
plaintiff must point to conduct on the part of the defendant that
is “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Restatement (Second) of Torts § 4 6 , cmt. d. Here, nothing about
the officers’ conduct was “extreme,” “outrageous,” or
“atrocious.” The officers had probable cause to believe Amatucci
had engaged in the criminal conduct with which she was charged,
15 they properly sought and obtained warrants for her arrest, and
they executed those warrants in a professional manner.
As to Amatucci’s claims for negligent infliction of
emotional distress, “expert testimony is required to prove
physical symptoms suffered from alleged negligent infliction of
emotional distress.” Silva v . Warden, 150 N.H. 3 7 2 , 374 (2003)
(citing Thorpe v . State, 133 N.H. 299, 305 (1990)). See also
Palmer v . Nan King Rest., Inc., 147 N.H. 681 (2002). Amatucci
has, however, failed to identify any medical expert(s) and the
time for doing so has passed. Absent expert testimony, she
cannot sustain her burden of proof. Defendants are, then,
entitled to judgment as a matter of law on her claims for
negligent infliction of emotional distress.
Conclusion
Plaintiff’s motion to amend her motion for summary judgment
(document n o . 57) is granted. But, for the foregoing reasons, as
well as those set forth in defendants’ memoranda, defendants are
entitled to judgment as a matter of law as to all remaining
claims in plaintiff’s amended complaint. Accordingly,
defendants’ motion for summary judgment (document n o . 53) is
granted and plaintiff’s motion for summary judgment (document n o .
16 55) is denied. Defendants’ motions to strike (document nos. 74
and 77) are denied as moot.
The Clerk of Court shall enter judgment in favor of
defendants and close the case.
SO ORDERED.
____________ Steven J. McAuliffe 'Chief Judge
June 2 5 , 2007
cc: Josephine Amatucci, pro se R. Matthew Cairns, Esq. Lisa Lee, Esq.