1Amatucci has filed a complaint (document no. 1), and three

documents titled “Addendum to Complaint” (document nos. 7, 9 &

11). Although not strictly in compliance with the court’s local

rules governing “Motions to Amend,” see Rule 15.1 of the Local

Rules of the United States District Court for the District of New

Hampshire (“LR”), I will accept these four documents in the

aggregate as the complaint in this matter. Amatucci is advised,

however, that all further amendments must comport with the local

rule, which states:

(a) A party who moves to amend a filing shall (i) 

attach the proposed amended filing to the motion to 

amend, (ii) identify in the motion or a supporting 

memorandum any new factual allegations, legal claims, 

or parties, and (iii) explain why any new allegations, 

claims, or parties were not included in the original 

filing.

(b) Any amendment to a pleading, whether filed as a 

matter of course or upon a motion to amend, shall 

reproduce the entire filing as amended and may not 

incorporate any prior filing by reference, except by 

leave of court.

LR 15.1.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Josephine Amatucci

v. Civil No. 05-cv-259-SM

Charles Hamilton, et al.

REPORT AND RECOMMENDATION

Before the Court is Josephine Amatucci’s complaint1 alleging

a number of claims, including her claim that the defendants have

violated her Fourth and Fourteenth Amendment rights to due

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 1 of 20
2

process by subjecting her to false arrest and detention. Because

Amatucci is proceeding both pro se and in forma pauperis, the

matter is before the Court for preliminary review to determine

whether the complaint states any claim upon which relief might be

granted. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1)(B). 

Standard of Review

Under this Court’s local rules, when a nonincarcerated

plaintiff commences an action both pro se and in forma pauperis,

the magistrate judge is directed to conduct a preliminary review

and to prepare a report and recommendation determining whether

the complaint or any portion thereof should be dismissed because:

the allegation of poverty is untrue, the action is 

frivolous, malicious, or fails to state a claim upon 

which relief may be granted, or seeks monetary relief 

from a defendant who is immune from such relief under 28 

U.S.C. § 1915(e)(2); or it fails to establish subject 

matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(1)(B). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 2 of 20
3

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988). 

Background

Josephine Amatucci is a resident of Wolfeboro, New

Hampshire. She has lived at her property there for twelve years. 

During that time, Amatucci has waged an ultimately successful

campaign to have the Town of Wolfeboro recognize her right to

restrict parking in front of her residence, although she lives on

a road that provides public beach parking. Prior to receiving

official sanction for her parking rights, however, Amatucci

frequently found herself at odds with both the local police and

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4

her neighbors regarding the location of parked cars in relation

to her property. On more than one occasion, Amatucci found

herself requesting help from the police to prevent cars from

blocking her driveway, but not receiving the requested help

because the police were under the impression that Amatucci was

attempting to control access to public parking. Ultimately,

these and other run-ins involving the neighbors’ use of her

property resulted in Amatucci having a contentious relationship

with her neighbors and the Wolfeboro Police Department.

The August 16, 2002 Incident

On August 16, 2002, at 5:00 p.m., Amatucci noticed that

Kelly Fitzgerald, a relative of one of her neighbors, parked her

car in a manner that blocked Amatucci’s driveway. Amatucci asked

Fitzgerald to move her car, but Fitzgerald refused. Amatucci

called the police. A boy who was a member of Amatucci’s

neighbor’s family, and who appeared to be too young to legally

drive, then got into Fitzgerald’s car and attempted to move it. 

In the process, the boy hit a cinder block that Amatucci had

placed on the ground to protect people from an iron mailbox rod

she had placed in the ground but that did not yet have a mailbox

on it. When the boy hit the cinder block, it shattered,

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5

resulting in a small piece of the block lodging itself in the

car’s wheel well so that the car couldn’t move. When Amatucci

expressed her amusement at this turn of events, four members of

Amatucci’s neighbor’s family, including Fitzgerald, came onto

Amatucci’s driveway and proceeded to kick and punch Amatucci and

throw stones at her. 

Amatucci got away from the individuals who were assaulting

her and ran inside her house to call the Wolfeboro Police

Department for assistance. In response to her call, Officer

Charles Hamilton responded to the scene while the neighbors were

still present in Amatucci’s driveway. Amatucci told Hamilton

that she wanted to press criminal charges against her attackers. 

Instead of assisting her as a crime victim, however, Amatucci

reports that Hamilton yelled at her. Because of Hamilton’s

reaction, Amatucci again called the Wolfeboro Police Department

and spoke with Wolfeboro Police Chief Brian Black who seemed to

be sympathetic to Amatucci’s complaints and offered to help

resolve the difficulties that Amatucci had with Hamilton. 

However, Amatucci claims that Black did not follow through on his

promise to assist her and, in fact, she did not hear from him

again regarding this matter.

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 5 of 20
2The complaint alleges initially that Hamilton was not in

possession of a valid warrant. However, Amatucci has appended an

affidavit from Judge Varney to her complaint stating that the

warrant was, in fact, signed and issued by Judge Varney on

October 30, 2002 while he was at his law offices. 

6

The Wolfeboro Police subsequently took the position that

Amatucci was the aggressor against her neighbors and sought to

prosecute her for damage to Fitzgerald’s car and for assault. 

Hamilton obtained a warrant to arrest Amatucci on those charges

and, on November 7, 2002, Hamilton entered Amatucci’s home and

arrested her on criminal mischief and assault charges pursuant to

that warrant.2 

Amatucci claims that Hamilton must have failed to present

exculpatory evidence to the judge issuing the arrest warrant,

specifically, Amatucci’s version of events and the statement of

an impartial witness to the events of August 16, 2002. Further,

Amatucci alleges that Hamilton falsely obtained the warrant by

stating to the judge that a cinder block had been placed on the

wheel well by Amatucci, damaging the car, when in fact he had

simply seen a fragment of cinder block inside the wheel well

after the fact, as Hamilton later confirmed. 

Amatucci states that after being arrested, she went to the

Wolfeboro Police Department to confront Black regarding her

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 6 of 20
3Amatucci alleges that Fitzgerald and other witnesses failed

to appear in Court. Amatucci also submits a statement from

another individual indicating that the witnesses failed to appear

to prosecute the case against Amatucci. However, Amatucci has

also submitted copies of two court orders with her complaint that

indicate that her “record of attempted criminal mischief” and her

“record of simple assault” were annulled on June 23, 2003. I

presume that it is her arrest and charge that were annulled from

her record, since Amatucci claims no conviction was ever entered

in these matters.

7

objection to being prosecuted. Amatucci claims that Black did

not answer her and that Officer James O’Brien was present and

that he stood by during the confrontation with his hand resting

on his gun. Amatucci further alleges that the prosecutor did not

subpoena the sole exculpatory witness to testify at Amatucci’s

trial. Although the complaint is unclear as to why, it appears

that the charges against Amatucci were ultimately dismissed.3

The November 2003 Incident

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 

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 7 of 20
8

cart in such a manner as to infringe Amatucci’s property. Bolduc

is Pauline Maloney’s brother.

According to Amatucci, her difficulties with the Maloneys

arose because the Maloneys repeatedly parked in such a way so as

to block Amatucci’s driveway access. Amatucci claims the

Maloneys parked this way to retaliate against Amatucci for

contacting the police when the Maloneys’ grandchildren rode golf

carts on Amatucci’s driveway late at night. 

Amatucci alleges that she has been subjected to ongoing

harassment from the Maloneys over the years, but the police have

done nothing to protect Amatucci’s right not to be harassed. 

Finally, the police told Amatucci to go to court and attempt to

obtain a “stalking order” against the Maloneys, which Amatucci

did. The Maloneys simultaneously sought a “stalking order”

against Amatucci. Amatucci and the Maloneys appeared in the

Carroll County Superior Court on November 12, 2003, for a hearing

on their mutual requests. Because both parties desired to have

no contact with each other, the judge, from the bench, authorized

orders restraining both parties from contacting or communicating

with each other or each other’s families. Amatucci interpreted 

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 8 of 20
9

the word “family” to mean that she was not to contact the

Maloneys or any member of their household. 

Prior to the November 12 hearing, Amatucci had sought the

assistance of legal counsel to resolve the outbuilding issue with

Bolduc. Because the lawyers had not yet acted on her behalf,

Amatucci took it upon herself to write a letter to Bolduc

insisting on payment for damages Bolduc had caused to the

outbuildings in order to avoid litigation over the issue. 

Amatucci brought the letter with her to Court on November 12,

thinking that Bolduc might appear in court with the Maloneys. 

When Bolduc did not appear, Amatucci mailed the letter to Bolduc

on November 13, 2003. 

On November 13, 2003, the Superior Court issued a written

Order on the requests for stalking orders. The written order

prohibited Amatucci and the Maloneys from contacting or

communicating with each other or each other’s relatives. 

Amatucci received this written Order on November 15, 2003, two

days after she had mailed the letter to Bolduc. 

On November 18, 2003, Pauline Maloney and Bolduc took

Amatucci’s letter to the Wolfeboro Police Department seeking

Amatucci’s prosecution for violating the Superior Court’s order. 

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 9 of 20
10

On December 29, 2003, defendants O’Brien and Hamilton arrested

Amatucci pursuant to an arrest warrant for violating the stalking

order by writing to Bolduc. 

Amatucci claims that O’Brien and Hamilton did not have facts

supporting probable cause to arrest her to present to the issuing

judge in support of the arrest warrant. Amatucci alleges that

the officers failed to include all of the material facts to the

issuing judge in support of their request for an arrest warrant. 

Amatucci alleges that to properly obtain an arrest warrant, the

officers would have had to aver that Amatucci knew, on November

13, 2003 when she sent the letter, that the stalking order

prohibited her from contacting the Maloneys’ relatives, and not

just the members of their household. Accordingly, Amatucci

alleges that the defendant officers must have omitted the fact

that Amatucci, on November 13, 2003, had only been told not to

contact “family members” which was properly interpretable as

“household members.” Amatucci claims that if all of the material

facts known to O’Brien and Hamilton had been prseented to the

judge, the mens rea for the offense of knowingly violating a

court order would have been negated. Therefore, she alleges, 

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 10 of 20
4The claims as identified and discussed herein will be

considered to be the claims raised in the complaint for all

purposes. If plaintiff disagrees with this identification of the

claims, she must do so by filing a proper objection to this

Report and Recommendation or by properly filing a motion to amend

the complaint.

542 U.S.C. § 1983 states, in relevant part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

11

probable cause would not have been established and a warrant

would not have issued. 

Amatucci claims that at her arraignment on this matter,

Judge Varney advised the prosecuting officers that they would

have to prove a particular definition of “family” in order to

convict Amatucci. Amatucci alleges that giving this advice to

the officers was outside of the Judge’s proper judicial capacity

and rendered Judge Varney a coconspirator in her false arrest and

detention. 

Discussion4

A government official may be held personally liable under 42

U.S.C. § 1983 if, acting under color of state law, the official

caused the deprivation of a federal constitutional or statutory

right. Kentucky v. Graham, 473 U.S. 159, 166 (1985).5 Amatucci

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 11 of 20
jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or 

other proper proceeding for redress. . . .

6The Fourth Amendment provides:

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, 

and particularly describing the place to be 

searched, and the persons or things to be seized.

12

alleges that she was subjected to false imprisonment and

detention by O’Brien and Hamilton when they twice secured her

arrest pursuant to arrest warrants that, she claims, were

obtained by the defendant officers’ failure to communicate

material exculpatory facts to the judge issuing the warrants. 

Amatucci claims that these omissions resulted in the violation of

her Fourth Amendment rights as her person was seized by the

arresting officers pursuant to improperly obtained arrest

warrants.6 

Amatucci further alleges claims against the remaining named

defendants to this action. Amatucci alleges that the Wolfeboro

police prosecutor, Dennis Davey, violated her constitutional due

process rights by failing to subpoena an exculpatory witness to

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 12 of 20
13

testify at Amatucci’s trial. Amatucci also alleges that Judge

Robert Varney violated her constitutional rights by giving advice

to the Wolfeboro Police Department, an act which she claims lies

outside the judicial function. Finally, Amatucci seeks to state

a claim against Wolfeboro Police Chief Brian Black, the Wolfeboro

Police Department, and the Town of Wolfeboro, for improperly

training and supervising the police officer defendants in this

case, directly resulting in a violation of Amatucci’s rights by

those officers. I will discuss and address these claims in turn.

1. False Arrest and Detention Claims Against O’Brien and 

Hamilton

Presuming the proper issuance of a warrant by a judge in

this case, Amatucci’s assertion is that the warrant was issued

based on the misleading impression left by defendants Hamilton

and O’Brien when they intentionally omitted material exculpatory

information from their warrant applications. “[T]he intentional

or reckless omission of material exculpatory facts from

information presented to a magistrate may . . . amount to a

Fourth Amendment violation.” Burke v. Town of Walpole, 405 F.3d

66, 81 (1st Cir. 2005). When evaluating allegedly material

omissions from a warrant application, “recklessness may be 

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 13 of 20
14

inferred where the omitted information was critical to the

probable cause determination.” Id. (citations omitted). 

To support her allegation of a violation of her Fourth

Amendment rights, Amatucci has alleged that Hamilton

misrepresented the nature of the cinder block in Fitzgerald’s

wheel well, omitted from his warrant application Amatucci’s

version of events, and omitted the statement of a witness that

corroborated certain key elements of Amatucci’s story. While

Amatucci has not filed a copy of the warrant application with her

complaint, she has filed a copy of Hamilton’s incident report and

later admissions regarding the size and location of the cinder

block, the neutral witness statement and other documents that

demonstrate a basis for her assumption that material facts were

omitted from the warrant affidavit for the August 2002 arrest. 

Accordingly, I find that Amatucci has stated the minimum facts

necessary to state a claim for a Fourth Amendment violation as it

relates to the November 7, 2002 arrest based on an improperly

obtained arrest warrant.

Amatucci has similarly stated her presumption that material

and exculpatory omissions were made by O’Brien and Hamilton to

obtain a warrant for her December 2003 arrest. Amatucci

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 14 of 20
15

specifically alleges that because she had not received a written

order clarifying that she was not allowed to contact Bolduc at

the time she mailed him the November 13, 2003 letter, that a

truthful and complete recitation of the facts to the issuing

judge would have belied the fact that the state did not have

sufficient evidence of the mens rea for the crime of knowingly

violating a restraining order to support probable cause. 

Amatucci claims that the warrant affidavit, which was not

submitted with the complaint, must have omitted the fact that

Amatucci had not yet received notice that contact with all of the

Maloneys’ relatives was forbidden by the superior court order. 

Amatucci has thus stated the minimum facts necessary to

demonstrate a Fourth Amendment claim for false arrest and

detention against O’Brien and Hamilton for the December 2003

arrest.

In an Order issued simultaneously with this Report and

Recommendation, I will direct that the False Arrest and Detention

claim for the August 2002 arrest be served on Hamilton. In that

Order, I will also direct that a False Arrest and Detention claim

be served on both O’Brien and Hamilton for the December 2003

arrest.

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 15 of 20
16

2. Prosecutorial Immunity

Prosecutors enjoy absolute immunity from suit under Section

1983 for actions taken within the scope of their prosecutorial

duties, even when those actions violate a plaintiff’s

constitutional rights or the suit is premised on malicious

prosecution. Imbler v. Pachtman, 424 U.S. 409, 427 (1976); see

Celia v. O’Malley, 918 F.2d 1017, 1019 (1st Cir. 1990). If the

challenged action of the prosecutor is “intimately associated

with the judicial phase of the criminal process,” it is a

function to which absolute immunity applies. Imbler, 424 U.S. at

430.

Here, Amatucci alleges that by failing to call a witness to

provide exculpatory testimony at trial, Davey violated her

constitutional rights. The decision as to what evidence to

present at trial is one that falls squarely within the

prosecutor’s role in the judicial phase of a criminal trial. 

Accordingly, Davey enjoys absolute immunity from suit for that

decision and I recommend that Davey be dismissed as a defendant

to this action.

3. Judicial Immunity

Judges are absolutely immune from suit for conduct within

their judicial capacities unless they act (1) outside the scope

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 16 of 20
17

of their judicial capacity or (2) “in the complete absence of all

jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump

v. Sparkman, 435 U.S. 349, 356 (1978); Boyd v. Biggers, 31 F.3d

279, 284 (5th Cir. 1994). Amatucci attempts to state a claim

against Judge Varney for acting outside of his judicial capacity

by advising the prosecuting authority that they would have to

prove a particular definition of “family” in order to

successfully prosecute Amatucci. Although Amatucci characterizes

this statement as “advice” to the prosecuting authority, it

appears from the facts alleged by Amatucci, that Judge Varney was

simply clarifying that the state had the burden of proof for the

mens rea of the offense charged. Discussion of the elements of

an offense charged in his Court, or the burden of proof

applicable in a particular case, is clearly within a judge’s

capacity and is a proper exercise of the judicial function. 

Accordingly, I find that Judge Varney is absolutely immune from

liability in this action and should be dismissed as a defendant

to this action.

4. Municipal Liability

Municipalities and local government entities are “persons”

within the meaning of § 1983. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 (1978). Under New Hampshire law,

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 17 of 20
18

towns, such as Wolfeboro, are considered local governmental

units. See N.H. Rev. Stat. Ann. (“RSA”) 507-B:1 (1997) (defining

“governmental unit” as “any political subdivision within the

state including any county, city, town . . ., but [not including]

the state or any department or agency thereof.”). In order to

maintain a claim against the town of Wolfeboro, or the Wolfeboro

Police Department, as a municipality under 42 U.S.C. § 1983, the

claim must be grounded upon an unconstitutional municipal custom

or practice and two requirements must be met. “First, the custom

or practice must be attributable to the municipality, i.e., it

must be ‘so well settled and widespread that the policymaking

officials of the municipality can be said to have either actual

or constructive knowledge of it yet did nothing to end the

practice.’” Miller v. Kennebec County, 219 F.3d 8, 12 (1st Cir.

2000) (quoting Bordanaro v. Mcleod, 871 F.2d 1151, 1156 (1st

Cir.), cert. denied, Everett v. Bordanaro, 493 U.S. 820 (1989)). 

Second, the custom must have been the cause of and “the moving

force” behind the deprivation of constitutional rights. Id. at

1157. Amatucci has not asserted any facts that demonstrate that

the town of Wolfeboro or the Wolfeboro Police Department engaged

in a custom or policy of allowing or enabling Wolfeboro police

officers to make material omissions in arrest warrant affidavits. 

Case 1:05-cv-00259-SM Document 12 Filed 01/20/06 Page 18 of 20
19

I find, therefore, that she has not stated a claim against the

town of Wolfeboro or its police department and I recommend that

they be dismissed as defendants to this action.

5. Supervisory Liability

“Supervisory liability under § 1983 cannot be predicated on

a respondeat theory, but only on the basis of the supervisor’s

own acts or omissions.” Aponte Matos v. Toledo Davila, 135 F.3d

182, 192 (1st Cir. 1998). A supervisor must be either “a primary

actor involved in, or a prime mover behind, the underlying

violation.” Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st

Cir. 1999). There must be “an affirmative link, whether through

direct participation or through conduct that amounts to

condonation or tacit authorization.” Id. at 44. Here, while

Amatucci has described facts that could be liberally construed to

allege that Black was supportive of Amatucci’s arrest and

unwilling to resolve matters directly with Amatucci, she has not

alleged any facts which demonstrate that Black either directly

participated in, condoned, or authorized in any way, the improper

obtaining of an arrest warrant by the omission of material

exculpatory information. Accordingly, I cannot find that

Amatucci has alleged facts that support a cause of action against 

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20

Black, and I recommend that he be dismissed as a defendant from

this action.

Conclusion

For the reasons discussed herein, I recommend that all

claims alleged against defendants Davey, Varney, Black, the town

of Wolfeboro, and the Wolfeboro Police Department, and Black be

dismissed from this action. In an Order issued simultaneously

with this Report and Recommendation, I will direct that

Amatucci’s false arrest and detention claims be served against

defendants Hamilton and O’Brien.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 20, 2006

cc: Josephine Amatucci, pro se

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