U. S. DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

JOSEPHINE AMATUCCI

plaintiff

NORMAN BOLDUC

PAULINE MALONEY

defendants

INTRODUCTION

JURY TRIAL DEMANDED

AWARD ATTORNEYS' FEES

AND COSTS PURSUANT TO

42 USC 1988 and RSA 507 :1 5

This case is presently before the court in a separate complaint involving two different

defendants, namely, Police OfficerCharles Hamilton, and Police Officer James O'Brien

Case No: 1 :05-cv-25 9

Josephine Amatucci of Wolfeboro, New Hampshire hereby asse rts the following claims against

the defendants in the entitled action :

(1) violation of 42 U.S.C. 1983: conspiracy

(2) violation of 42 U .S.C. 1983: arrest and deten.tion

(3) malicious prosecution

(4) batte ry

(5) intentional infliction of emotional distress

(6) negligent infliction of emotional distress

(7) supplemental state claims

JURISDICTION

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1 . Jurisdiction of this court arises under 28 U.S .C. secs 1331, 1337, 1343 (a) and 136 ;

42 U.S.C. secs. 1983, 1985, 1986 and 1988 ; and 18 U.S.C. 1961-1968.

To hear and adjudicate state law claims.

PARTIES:

2. Plaintiff, Josephine Amatucci is a citizen of the United States and a resident of

Wolfeboro, New Hampshire .

3. Defendant Pauline Maloney, a resident of Wolfeboro, New Hampshire, resides

at 188 Stoneham Road, Wolfeboro, New Hampshire, 03894 .

4. Defendant Norman Bolduc a summer resident of Wolfeboro, Sandy Lane New Hampshire,

living at 61 Lawrence Street, Danvers, Massachusetts, 01923 .

JURY TRIAL DEMANDED

FACTS:

5. Defendant Pauline Maloney has been harassing Plaintiff for years. The harassment began

when Maloney 's grandson was driving his golfcart on Plaintiffs driveway, day and night.

and after Plaintiff tried reasoning with his parents and grandparents, and to no avail, Plaintiff

called the police, and they told the boy never to come on Plaintiffs driveway again or

they would take the golfca rt away. That's when the harassing began .

6. Maloney lives next door to Plaintiff and her brother Norman Bolduc lives in the back of

Plaintiffs house. We all live across from the beach.

7. When going to the beach, instead of leaving her car in her driveway , and walking across

the road to the beach , Maloney drives her car to Plaintiffs' house , parks the car in front

of Plaintiffs' driveway, then walks across the narrow road , j ust steps to the beach .

8. Plaintiff calls the police to get her away , the police come, but they do nothing, and

when they go away she comes right back . This has been going on for years, it doesn't stop.

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and this goes on all day, every day .

9. Other times of the day Maloney visits with her brother Bolduc, who lives in the back of

Plaintiffs house, she drives her car over there and beeps the horn loud as she passes. These

incidents happen all times of the day, constantly .

10. At times she has a group of friends in the car, parks in front of Plaintiffs

and she and her friends throw their beach stuff on Plaintiffs driveway, stand an d

chatter on Plaintiffs driveway, then they pick up their belongings and walk across to the beach,

leaving the car blocking Plaintiffs driveway .

11 . While on the beach, Maloney can be heard telling the beach people they should park in

front of Plaintiffs' driveway, and other remarks about Plaintiff This all happens in front of

Plaintiffs' house, with the beach people directly across, which makes Plaintiff very tense and

anxious.

12. Plaintiff tried everything to get her away for good . Plaintiff went before the Town

Selectmen and was able to get the Town to agree to "No Parking" in front of Plaintiffs' driveway .

Plaintiff also had a letter from the Department of Transportation stating that Plaintiffs ' driveway

z

was legal and no one had a right to block the dri veway. The police still refused to give her a

ticket, and she still parked there in defiance. Plaintiff heard her threaten one polic e

officer with the statement that he better watch his step because she knew someone "high up in

the ladder of the department", and she asked for his badge number .

13 . Plaintiff also had trouble with defendant Bolduc, who is Maloneys brother. Bolduc

insisted on parking his golfcart on Plaintiffs' property . He would park his golfcart, leave his

dog inside the golfcart and walk across the road to the beach . The dog would bark constantly.

Plaintiff could not get Bolduc off her property, and not even the police could help .

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14. Finally on September 10, 2001 Plaintiff took Bolduc to court . In court the judge

ordered Bolduc to stay off Plaintiffs' property .

15 . . The harassing, continued with Maloney still blocking Plaintiffs driveway . .

16. Also, defendants would wait for Plaintiff to leave her house and they she would put a

sign on Plaintiffs' house which read "Bitch Parking Only . "

17. Or, defendants would put "House For Sale" signs on Plaintiffs' house.

18 . Maloney complained about Plaintiff to the Town, constantly . She reported

41

to the Health Inspector that Plaintiffs' septic system was not working . The Town Health

Inspector was obligated to check it out . He didn't find anything wrong with the septic system,

He told Plaintiff it was Maloney who put in the complaint, and other complaints, as she was

driving the town crazy. He asked why Maloney would be doing such a thing . This was a very

very serious gesture on her part, because had Plaintiffs septic system broken down, and she

reported it to the Town, Plaintiff could have been ordered out of her house. It could have

been very serious.

19. Maloney complained to the Town that Plaintiff had two mailboxes. Plaintiff had

a legal accessory apartment, justifying two mailboxes . Maloney ordered the town and the

6

superior court judge to order Plaintiff to remove one mailbox .

20 . When Plaintiff was renovating her property defendants insisted to the town that

Plaintiffs property should be tom down, not fixed . They told the Town Plaintiffs' house was not

habitable .

21 . Plaintiff asked Police Officer Keaton to take a letter to Maloney, ordering her to stay

away from Plaintiffs' property.

22 . Bolduc in the meantime had destroyed two outhouses in back of Plaintiffs' house,

which Plaintiff had a legal right to use them . On November 3, 2003 Plaintiff visited Attorne y

y

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Hanson to craft a letter to Bolduc demanding him to pay for the destruction of the outhouses .

23 . At the same time with the suggestion of the Police, Plaintiff took Maloney to Court to

get a Stalking Order on her. On November 12, 2003, Plaintiff went to court for the Stalking

Order. In court Maloney asked for a Stalking Order also, Plaintiff did not object, because she

never harassed Maloney, and thought it was harmless. Therefore, the Judge ordered Plaintiff

and Maloney not to have any communication with each other, and each others "family" .

"family" meaning:

One (1) or more persons having a common domestic bond who live

together in ONE (1) DWELLING UNIT, as a traditional family or its

functional equivalent, headed by one (1) or more resident persons

who have authority over the care , functioning or management of

their common household .

24 . Plaintiff assumed Bolduc would be in court that day, with his sister Paulin e

Maloney. The Attorneys' letter to Bolduc was not ready , so Plaintiff crafted a letter herself

and took it with her to court, to give it to Bolduc . Bolduc was not present in court so Plaintiff

mailed the letter the next day, which was November 13, 2003 .

25. On November 13, 2003, the court mailed out the final order for the "stalking order" .

r

The final order added the word "relatives" to the order .

26. Plaintiff received the final order November 15, 2003, two days after she mailed the

letter to Bolduc. Bolduc is a "relative" of Maloney's, he is her brother . However, before the

fifteenth of November, which was when Plaintiff received the final order, there was no way

Plaintiff would know she could not communicate with the "relatives" of Maloney . The word

"relatives" was never mentioned in court on November 12th, by the judge . The judge just

mentioned "family" .

27. After receiving the final order, Maloney and her brother Bolduc, went to the polic e

J

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station and told the police that Plaintiff had violated the Stalking Order by writing to Bolduc .

defendants spoke with Officer O'Brien.

28. Defendants signed a criminal complaint against Plaintiff , setting in motion the arrest

and incarceration of Plaintiff. And by doing so, defendants played an active pa rt in the initiatio n

of the criminal proceedings of Plaintiff Plaintiff was arrested and incarcerated .

29. On December 29, 2003 Defendant O'Brien and his supervisor Officer Hamilton

came to Plaintiffs house and arrested Plaintiff, and took her to jail .

COUNT 1 : VIOLATIONS OF 42 U.S.C. 1983 : CONSPIRACY

30. To state a claim under Section (s) 1985(3) a plaintiff must alleg e

the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive

a person or class of persons, directly or indirectly, of the equal protection

of the laws or of equal privileges and immunities under the laws, (3) an

overt act in furtherance of the conspiracy, and (4) either (a) an injury to

person or property, or (b) a deprivation of a constitutionally protected right

or privilege. See Griffin v. Breckenridge, 403 U.S . 88, 102 (1971 )

31 . The conspiratorial purpose was malice, to avoid a civil suit, and Bolduc possibly

having to pay damages for destroying the outhouses, defendants conspired to have Plaintiff

falsely arrested .

32 . Plaintiff was deprived of her liberty without due process of law and right to equal

protection of laws, and due course of justice was impeded in violation of the fifth and fourteenth

Amendment of the Constitution of the United States and 42 U. S.C. sec. 1983 and 1985.

33 . Defendants made a false statement of a material fact, to the police, as to Plaintiff

violating the Stalking Order, with knowledge of its falsity, to the Plaintiffs detriment, with

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damages to Plaintiff of false arrest and detention, as a direct result of these acts.

34. Defendants knew that "relatives " was not mentioned in Court, so Plaintiff could not

possibly have known she was not to communicate with the " relatives " of Maloney, on

November 13th, when she mailed the letter to Bolduc . .

35 . The scheme of the conspiracy was (1) to make null and void the demand le tter for

restitution for the destruction of the "outhouses " . (2) to avoid a lawsuit. (3) and personal

ulterior motives.

36 . A true purpose to effect the criminal result and recklessly cause emotional and physical

harm to Plaintiff by her arrest and incarceration.

37. Plaintiff was handcuffed and searched by an unknown person at the jailhouse .

38. Defendants possessed a purposeful mental state to every element of the underlying

crime.

39 . Defendants misrepresentations were persuasive to the police and caused Plaintiff to

be arrested and incarcerated .

Noonan v. Fdic - Danca v . Taunton

Where two or more persons act in concert, each will be jointly

and severally liable for the tort. The gist of a civil action of this

sort is not the conspiracy, but the deceit or fraud causingdamag e

to the plaintiff, the combination being charged merely for the purpose

of fixing joint liability on the defendants . For harm resulting to a third

person from the tortious conduct of another, one is subject to liability

if he (a) does a tortious act in concert with the other, or pursuant to a

common design with him . There is malice, intent, knowledge and other

conditions of the mind of a perso n

New England Foundation Co . v. Reed, 209 Mass . 556

Payton v. Abbott Labs

A person is guilty of conspiracy , if, with a purpose that a crime de fined

by statute be committed , he agrees with one or more persons to commit

or cause the commission of such crime, and an ove rt act is committed by

by one of the conspirators in furtherance of the conspiracy. RSA 629:3, 1

7

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State v. Chaisson, 123 N.H. 17, 24 (1983)

WHEREFORE, Plantiff demands judgement for the conspiracy against all the defendants

for actual , general, special , compensatory damages in the amount of $200,000 and further

demandsjudgement against each of said defendants , for punitive damages, plus the costs

and such other relief deemed to bejust and equitable .

COUNT 2; VIOLATIONS OF 42 U .S.C. 1983 : ARREST AND DETENTION

40. At all times relevant herein, the conduct of the defendants were subject to 42 U.S.C.

secs 1983m 1 985m 1986m abd 1988 .

(a) by depriving Plaintiff of her liberty without due process of the

law, by having Plaintiff taken into custody and holding her there

against her will.

County of Sacramento v. Lewis 523 U.S,. 833 ( 1998).

Youngberg v. Romeo 457 U.S . 307 ,

( b) by making a search of her without her consent .

(c) by conspiring for the purpose of impeding and hindering the

due course of justice.

(d) by refusing or neglecting to prevent such deprivations, therefore,

depriving Plaintiff of her rights, privileges, and immunities as

guaranteed inthe Fou rth, Fifth, and Fou rteen Amendments to the

Constitution of the United States .

41 . The Supreme Court reasoned that since the common law had recognized the casual

link between submission of a complaint and ensuing arrest , defendants are guilty of

Plaintiffs false arrest and incarceration .

42 . . Plaintiff feels there is a real and immediate threat of repeated injury, as recently

defendant displayed malice tow ard Plaintiff in a newspaper a rticle.

43 . Therefore, It cannot be assumed that the defendants will conduct their activities withi n

y

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the law, considering the regularity of the defendants abusive and threatening conduct in the pas t

and now.

Hibma v. Odegaard 769

Monroe v. Pape

A claim for false arrest and detention is not limited to the actions

of police officers. A claim for false arrest can be sustained against

a person who instigates or directs an arrest or a detention made by a

police officer who is carrying out a complainants' request.

Vernon v. Phillips

Davern v. Drew

Eisenkra v. Armstrong

Barnes v. Bolhorst

Celnick v. Feitag

King v. Crossland savings ban k

COUNT 3 : MALICIOUS PROSECUTION

44. Defendants instituted criminal process against the plaintiff with malice :

(a) defendants played an active part in the initiation

of criminal proceedings;

(b) defendants signed the criminal complaint against Plaintiff.

45. The charges were not based on a state of facts to believe Plaintiff was not

guilty.

46. Defendants instigated and participated in the prosecution by pressing polic e

to arrest and apply for a complaint for an improper purpose i .e. using court proceedings

primarily to gain an advantage, because of hostility and ill will .

47. The criminal proceeding terminated in favor of the Plaintiff when the Prosecutor

recommended the dismissal of the charges, and the court accepted the recommendation

and dismissed the charges against Plaintiff.

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Votrellas v. Viveiros 410 Mass. 314, 318 (1991). "A dismissal of a

criminal complaint by the court entered by the prosecutor satisfies

the requirement that the criminal prosecution has been terminated .

Sarvis v. Boston Safe Deposit and Trust Co. 1994

Wynne v. Rosen 391 Mass. 797

WHEREFORE, Plaintiff Amatucci demands judgement against all defendants for injuntive

and actual, special, compensatory damages in an amount deemed at time of trial to be fair,

and appropriate .

Defendants malicously used a "legal process" to accomplish some

ulterior purpose which it was not designed or "intended" or which

was not the legitimate purpose of a particular process employed .

Carroll v. gillespie-Jones v. Brocton, Quaranto v. silverman

A person may be liable for false imprisoment not only when the person's

own acts directly impose a restraint upon the liberty of another, but als o

when that person, by providing information causes such restraint to be imposed .

Kajavainen V. Buswel

Mezullo v. Maietz

48 . If the act is done with the intent to confine another, and such act is the legal cause of

confinement to another, it is immaterial whether the act directly or indirectly causes

confinement.

Sarvis v. Boston SateDeposit and Trust Co.

COUNT 4: BATTERY

49. Without the consent of Plaintiff, plaintiff was intentionally, harmfully, and offensively ,

touched Plaintiff by handcuffing her, and dragging her outside to the police car withou t

16

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shoes, with snow on the ground .

50. Without the consent of Plaintiff, defendants indirectly caused an unknown corrections

officer at the Carroll County jail to intentionally, harmfully, and offensively touch Plaintiff

when searching her.

COUNT 5 : INTENTIONAL INFLICTION OF EMOTIONAL DISTRES S

51 . Defendants intentionally and deliberately inflicted emotional distress on Plaintiff

by maliciously prosecuting Plaintiff, or by abusing the lawful process by unlawful

purpose, violating Plaintiffs' constitutional rights, or by falsely arresting an d

imprisoning the Plaintiff, conspiring and interfering with Plaintiffs' civil rights by threats,

or intimidation, or knew or should have known that emotional distress was the likely

result of their conduct.

52. Defendants conduct was extreme and outrageous, beyond all possible bounds

of decency and utterly intolerable in a civilized community .

53 . The actions of the defendants were the cause of Plaintiffs distress .

54. The emotional distress sustained by Plaintiff was constant and over a period of

years of harassment, severe and of a nature that no reasonable man could be expected to

endure.

Agis v. Howard Johnson Co . 371 Mass. 140, 145

55 . As a result of the defendants' extreme, constant, and outrageous conduct, Plaintiff

was, and with a high degree of likelihood, will continue to be emotionally distressed due

to the intentions of defendants.

"Extreme and outrageous conduct is not required if the emotional

distress resulted from the commission of another tort.

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"American Velodur Metal , Inc . v. Schinabek 30 Mass. App Ct. 460

56 . As a result Plaintiff will continue to suffer mental pain and anguish, severed

emotional trauma, embarrassment and humiliation .

WEREFORE; Plaintiff demands judgment , in the amount deemed by this Cou rt to be just

and in any other way in which the Court deems appropriate.

COUNT 6 : NEGLIGENT INFLICTION OF EMOTIONAL DISTRES S

57. As a continuation of 49 .

Defendants Maloney and Bolduc negligently inflicted emotional distress on Plaintiff,

by conspiring and initiating a false arrest and incarceration.

Plaintiff suffered emotional distress when defendants breached their duty as police

officer's to perform a professional service in such a manner as not to inflict emotional distress

to Plaintiff.

Plaintiff was, and, with a high degree of likelihood will continue to be inflicted

with emotional distress due to the negligence of defendants.

WHEREFORE, Plaintiff demands judgement for the false arrests and detention against

defendants, jointly and severally, for actual , general, special , compensatory damages, and

further demands judgement against each of said defendants, jointly and severally, for punitive

damages, plus the costs of this action , including attorney fee's and relief deemed to be just

and equitable .

COUNT 7 : SUPPLEMENTAL STATE CLAIM S

58. The acts of conduct of Defendants constitute false arrest , false imprisonment,

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malicious prosecution, defamation and invasion of privacy-casting in a false light, under

the laws of the State of New Hampshire, and this court has supplemental jurisdiction to

hear.

Plaintiff requests a trial by jury on all issues raised in this action triable by jury as amatte r

of right.

WHEREFORE, the Plaintiff request that this court:

(a) award compensato ry damages to Plaintiff

(b) award costs of this action to the Plaintiff

(c) award reasonable Atttomeys fees and costs to the Plaintiff

(d) award of 200 thousand dollars to Plainti ff

(e) award such other and further relief as this cou rt may deem appropriate .

Punitive damages are reasonable in Sec. 1983 suit where defendants conduct is motivated

by evil motive, or intent, or where it involves recekless or callous indifference to Plaintiffs

federally protected rights. Smith v. Wade 461 U .S. 30m-50-51 (1983) Clark v . Taylor, 110 F.

2nd 4, 14 (lst cir. 1983) .

Res ectfully,

J sephme Amatucci

P .O. Box 272

Wolfeboro Falls, N .H. 03896

603-569-2429

June 2006

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