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

addendum to her complaint (document no. 4). 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 both filings in the aggregate as the

complaint in this matter. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Josephine Amatucci

v. Civil No. 06-cv-225-JD

Norman Bolduc & Pauline Maloney

REPORT AND RECOMMENDATION

Before the Court is Josephine Amatucci’s complaint1 alleging

that her neighbors have conspired to violate her civil rights by

harassing her and causing her to be arrested and detained on

false criminal charges. 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). 

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2

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

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

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3

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” or “unsupportable conclusions”

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 there for more than twelve years. 

During that time, Amatucci has been in frequent turmoil with two

of her neighbors, Pauline Maloney and Norman Bolduc, who are

brother and sister. Although the dispute originated in a

disagreement over the defendants’ alleged infringement of

Amatucci’s property, it progressed to heated verbal and legal

confrontations between Amatucci and the defendants, and

ultimately the issuance of protective orders prohibiting Amatucci

and Maloney from contacting or communicating with one another. 

Amatucci alleges that the defendants have violated her

rights by conspiring to falsely accuse her of the crime of

violating the protective no-contact order, reporting the false

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2Amatucci has another action pending in this Court against

other defendants that arose, in part, out of the same facts and

circumstances that gave rise to the instant complaint. See

Amatucci v. Hamilton, Civ. No. 05-259-SM.

4

crime to the Wolfeboro police, and thereby causing Amatucci to be

falsely arrested, physically assaulted, and wrongfully detained

pursuant to the fabricated criminal charges.2

According to Amatucci, her present difficulties with Maloney

and Bolduc derive from Maloney’s habit of parking on the street

in front of Amatucci’s home in such a way so as to block

Amatucci’s driveway, rather than at her own home, which is down

the road from Amatucci’s property. Amatucci claims Maloney parks

this way to retaliate against Amatucci for contacting the police

to stop Maloney’s grandson from riding his golf cart on

Amatucci’s property. Amatucci also alleges that Maloney has left

nasty signs on Amatucci’s property, encouraged others to park in

front of Amatucci’s driveway, and turned people against Amatucci. 

Amatucci alleges that she has been subjected to ongoing

harassment from the Maloney family 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 Maloney, which Amatucci did. 

Maloney simultaneously sought a “stalking order” against

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5

Amatucci. Amatucci and Maloney 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 understood 

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

any member of her household. 

Prior to the November 12 hearing, Amatucci had sought the

assistance of legal counsel to resolve an issue with Bolduc

regarding his destruction of some outbuildings in which Amatucci

claims a property interest. Bolduc lives behind Amatucci’s

property. Since the lawyers had not yet acted on her behalf,

Amatucci wrote a letter herself 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 Maloney. 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

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342 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 

jurisdiction thereof to the deprivation of any 

6

prohibited Amatucci and Maloney from contacting or communicating

with each other or each other’s relatives. This directive, for

the first time, prohibited Amatucci from contacting Bolduc, who

is Maloney’s brother but not a member of her household. Amatucci

received this written Order on November 15, 2003, two days after

she had mailed the letter to Bolduc. 

On November 18, 2003, Maloney and Bolduc took Amatucci’s

letter to the Wolfeboro Police Department seeking Amatucci’s

prosecution for violating the Superior Court’s order. On

December 29, 2003, two Wolfeboro police officers arrested

Amatucci by placing her in handcuffs and “dragging” her to the

police car to be transported to the police station. A criminal

charge was brought against Amatucci and ultimately dismissed in

the District Court for Southern Carroll County.

Discussion

Amatucci brings her claims against Maloney and Bolduc

pursuant to 42 U.S.C. §§ 1983 & 1985(3).3 Amatucci alleges that

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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. . . .

42 U.S.C. § 1985(3) states, in relevant part:

If two or more persons in any State or Territory 

conspire or go in disguise on the highway or on the 

premises of another, for the purpose of depriving, 

either directly or indirectly, any person or class 

of persons of the equal protection of the laws, or 

of equal privileges and immunities under the laws; 

or for the purpose of preventing or hindering the 

constituted authorities of any State or Territory 

from giving or securing to all persons within such 

State or Territory the equal protection of the 

laws; . . . in any case of conspiracy set forth in 

this section, if one or more persons engaged 

therein do, or cause to be done, any act in 

furtherance of the object of such conspiracy, 

whereby another is injured in his person or 

property, or deprived of having and exercising any 

right or privilege of a citizen of the United 

States, the party so injured or deprived may have 

an action for the recovery of damages occasioned 

by such injury or deprivation, against any one or 

more of the conspirators.

7

she was subjected to a violation of her federal constitutional

due process and privacy right, and the following violations of

state law: false arrest and imprisonment, malicious prosecution,

battery, intentional infliction of emotional distress, negligent

infliction of emotional distress, and defamation, in a sequence 

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8

of events commenced when Maloney and Bolduc fabricated and signed

a criminal complaint against her. 

The Section 1983 Claim

Federal courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. of Am., 511 US. 375, 377 (1994). The

presumption is that a federal court lacks jurisdiction. Id.

Consequently, the burden is on the plaintiff who claims

jurisdiction to affirmatively allege jurisdiction and prove it. 

Id.; see also Bender v. Williamsport Sch. Dist., 475 U.S. 534,

541 (1986). To bring a civil action within the court’s subject

matter jurisdiction, a plaintiff must allege that her action

either involves a federal question, or involves citizens from

different states and an amount in controversy in excess of

$75,000. See 28 U.S.C. §§ 1331 & 1332. If it appears that the

court lacks subject matter jurisdiction over the matter, the

court is required to dismiss the action. Fed. R. Civ. P.

12(h)(3).

Turning to the case at hand, the complaint is clearly

insufficient to invoke the subject matter jurisdiction of this

court. First, although plaintiff has alleged two hundred

thousand dollars in damages, and has therefore met the amount in

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controversy requirement of 28 U.S.C. § 1332, the complaint does

not allege that the parties are citizens of different states. In

fact, the complaint alleges a neighbor dispute with all of the

parties residing in Wolfeboro, New Hampshire at the time of

filing. Therefore, Amatucci has not alleged diversity

jurisdiction. See 28 U.S.C. § 1332. 

Secondly, although it appears that Amatucci has tried to

invoke the federal question jurisdiction of this Court pursuant

to 28 U.S.C. § 1331, she has failed to do so. Amatucci has

alleged that the defendants, private persons, have violated her

federal constitutional civil rights. The United States

Constitution “erects no shield against merely private conduct,

however . . . wrongful.” Blum v. Yarketsky, 457 U.S. 991, 1002

(1981). A plaintiff claiming an infringement of his civil rights

by individual defendants must establish that (i) the defendants

deprived plaintiff of a right secured by the Constitution or laws

of the United States, and that (ii) the defendants acted under

“color of any statute, ordinance, regulation, custom, or usage,

of any State or Territory of the District of Columbia.” 42

U.S.C. § 1983; see Andresen v. Diorio, 349 F.3d 8, 13 (1st Cir.

2003). In relation to the second requirement, a private actor

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can be held to be a state actor under only three circumstances:

“(i) where there is a sufficiently close nexus between the state

and the challenged action of the private party so that the action

of the party may be fairly treated as that of the state itself,

(ii) where the private party has exercised powers that are

‘traditionally the exclusive prerogative of the state,’ or (iii)

where the state has exercised coercive power or has provided such

significant encouragement, either overt or covert that the action

of the private party must in law be deemed to be that of the

state.” Lewis v. Law-Yone, 813 F. Supp. 1247, 1254 (N.D. Tex.

1993) (quoting Blum, 457 U.S. at 1004); see also Jackson v.

Metro. Edison Co., 419 U.S. 345, 357 (1974). Here, Amatucci

alleges that Maloney claimed to know someone at the Wolfeboro

Police Department, but that is insufficient to allege that she

engaged in a conspiracy, or otherwise had a close nexus, with a

Wolfeboro Police officer. In fact, Amatucci alleges that the

Maloney and Bolduc conspired with one another to provide false

information to the police in order to have Amatucci arrested. 

This conduct, if proven, may demonstrate an agreement between

Maloney and Bolduc to harm Amatucci, but it does not show a

conspiracy or agreement between the defendants and any state

Case 1:06-cv-00225-JD Document 5 Filed 10/04/06 Page 10 of 13
11

official. Therefore, Amatucci has not alleged a nexus between

any state actor and the private defendants sufficient to elevate

the actions of Maloney and Bolduc to “state action.” Further,

Amatucci has not alleged any actions on the part of the

defendants that would constitute actions taken on behalf of the

state, at the behest of the state, or that traditionally fall

into the exclusive purview of state actors. Accordingly,

Amatucci’s § 1983 claim cannot lie against the private defendants

named, and I recommend that the claim be dismissed as it does not

establish the subject matter jurisdiction of this Court. Fed. R.

Civ. P. 12(h)(3); LR 4.3(d)(1)(B)(i).

The Section 1985(3) Claim

Amatucci alleges a claim against the private defendants

under 42 U.S.C. § 1985(3), which creates a private cause of

action “for injuries occasioned when ‘two or more persons . . .

conspire . .. for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

under the laws.’” Diva’s, Inc. v. City of Bangor, 411 F.3d 30,

38-39 (1st Cir. 2005) (citing Burns v. State Police Ass’n of

Mass., 230 F.3d 8, 12 n.3 (1st Cir. 2000) (quoting 42 U.S.C. §

Case 1:06-cv-00225-JD Document 5 Filed 10/04/06 Page 11 of 13
12

1985(3))). To state a claim under § 1985(3), the plaintiff must

allege that the conspiratorial conduct complained of was

motivated by some “racial, or perhaps otherwise class-based,

invidiously discriminatory animus.’” Aulson, 83 F.3d at 3

(quoting Griffin v. Breckenridge, 403 U.S. 88, 91 (1971)). 

Amatucci has alleged neither that she is a member of any

protected class of persons nor that she was the object of

invidious discrimination by the defendants. To the contrary,

Amatucci alleges a neighbor dispute based on personal animus. 

Because Amatucci cannot allege a § 1985(3) civil rights action

against the private defendants based on personal animus, I

recommend that this claim, too, be dismissed for failure to

establish the subject matter jurisdiction of this Court. Fed. R.

Civ. P. 12(h)(3); LR 4.3(d)(1)(B)(i).

State Law Claims

Amatucci has alleged several tort claims under state law

based on the same facts alleged in support of her civil rights

claims. Under 28 U.S.C. § 1367, this Court may exercise

supplemental jurisdiction over state law claims that arise out of

the same facts and circumstances as those alleged to give rise to

the federal claims properly before the Court. In this case,

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13

however, where I find that the Court lacks subject matter

jurisdiction over the federal claims, I decline to exercise this

Court’s supplemental jurisdiction over the state law claims. See

28 U.S.C. § 1367. Accordingly, I recommend dismissal of the

claims based on state law.

Conclusion

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: October 4, 2006

cc: Josephine Amatucci, pro se

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