UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Josephine Amatucci,

Plaintiff

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

Opinion No. 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. 

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Amatucci v. Hamilton et al Doc. 162

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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 112, 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. 242, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the nonmovant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

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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 982, 987 (1st Cir. 1997). 

Background

I. The August 2002 Incident.

On August 16, 2002, Mrs. Amatucci was concerned that a

neighbor - Kelly Fitzgerald - had parked her car on Amatucci’s

property. So, 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. 

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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 so, 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 no. 53-4, at 10. Another reported that he had

seen Amatucci carrying a cement block near the car shortly before

Mrs. Fitzgerald attempted to move it. Uniform Witness Statement

of Robert Marston, Document no. 53-4 at 8. Plainly, those

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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 it. See

also Incident Report prepared by Officer Hamilton, Document no.

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. 

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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 Ms. Fitzgerald had driven

over the concrete block that she (Amatucci) had placed over a

broken metal post.” Document no. 53-5 at para. 5. Hamilton went

on, 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. 

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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 no. 12 at 7-8. Eventually, the Maloneys and Amatucci

sought mutual restraining orders. On November 12, 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 no. 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 no. 53-8

(emphasis in original). 

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On November 15, 2003, Mr. 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, Mr.

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 in. The officers complied and

then transported her to the Carroll County House of Corrections

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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 Mr. 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

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“household members” and, therefore, does not apply to Mr. 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 66, 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

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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

is, her brother, Mr. 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 no.

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. 

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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. 844, 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

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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 no. 35) at para.

36. See also Plaintiff’s memorandum in support of summary

judgment (document no. 58) at 13. 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 64, 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

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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 it.”). 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 no. 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

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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 § 46, 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,

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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. 372, 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 no. 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 no. 53) is

granted and plaintiff’s motion for summary judgment (document no.

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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 25, 2007

cc: Josephine Amatucci, pro se

R. Matthew Cairns, Esq.

Lisa Lee, Esq.

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