Amatucci v. Rae

1

Josephine Amatucci v. Hawley Rae, et al.

No. 22-cv-202-SM-AJ

United States District Court, D. New Hampshire

July 17, 2024

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

Following the suspension of her New Hampshire driver's license plaintiff Josephine Amatucci, appearing pro se and in forma pauperis, sued several individuals involved in the suspension process. Following preliminary review, the undersigned Magistrate Judge recommended dismissal of all claims against all defendants, except for certain claims against New Hampshire State Trooper Hawley Rae and New Hampshire Division of Motor Vehicles Director John Marasco. (Doc. No. 25). In the absence of an objection from Mrs. Amatucci, Judge McAuliffe approved the report and recommendation. (Doc. No 32). Presently before the court for a report and recommendation pursuant to LR 72.1 are the defendants' motion to dismiss (Doc. No. 45) and Mrs. Amatucci's motions for summary judgment (Doc. Nos. 27/9040, 31/9062 35/9073 and 37/9080), motion for judgment as a matter of law (Doc. No. 42/9097) and motions for hearing (Doc. Nos. 44/9115 and 46/9119).^[1]As explained below, the defendants' motion should be granted and Mrs. Amatucci's motions should be denied.

Factual Background^[2]

A. Traffic stops

This case stems from three traffic stops involving Mrs. Amatucci in 2020 and 2021. First, on February 26, 2020, Trooper Rae stopped Mrs. Amatucci after she passed through a stop sign and turned left onto Route 28 from Route 109 in Wolfeboro, New Hampshire. In contesting the stop at the scene, Mrs. Amatucci denied that there was a stop sign at the intersection and that she had almost caused a crash. Trooper Rae's traffic ticket charged Mrs. Amatucci with violating N.H. Rev. Stat. Ann. (“RSA”) 265:30, for failing to stop at the stop sign. (Doc. No. 9-1 at 10).

Next, on December 23, 2020, N.H. State Trooper Nikita Klimashov saw Mrs. Amatucci pull out of a gas station onto a divided section of Gosling Road in Portsmouth, New Hampshire -directly in front of his cruiser -- and attempt to turn in the wrong direction on that one-way stretch of road. See Doc. No. 11 at 6. The trooper sounded his airhorn, causing Mrs. Amatucci to turn her car in the correct direction. After she pulled over, Mrs. Amatucci explained to Trooper Klimashov that the incident was not unsafe, and “no big deal,” because it had not caused an accident. See Doc. No. 1-1 at 6. Mrs. Amatucci received a traffic ticket on that date for a traffic violation described as “failure to keep right - rotary,” in violation of RSA 265:23. See Notice of Cleared Default, State v. Amatucci, No. 470-2021-cr-0003 (N.H. Cir. Ct., 10th Cir., Dist. Div.-Portsmouth Apr. 7, 2022 (Doc. No. 1-1 at 30). After a hearing on December 15, 2021, the state court entered an “administrative guilty” finding on that charge and imposed a fine. See State v. Amatucci, No. 470-2021-cr-0003 (N.H. Cir. Ct., 10th Cir., Dist. Div.-Portsmouth Dec. 15, 2021).

The third incident occurred on June 3, 2021, when N.H. State Trooper Mark Hensel saw Mrs. Amatucci make a u-turn across a double yellow line, onto the opposite shoulder of Route 16 in Ossipee, New Hampshire. After Trooper Hensel pulled her over, Mrs. Amatucci said she did nothing wrong. The trooper issued Mrs. Amatucci a ticket charging her with a “yellow/solid line” violation, in violation of RSA 265:22. See Doc. No. 9-1, at 9.

Mrs. Amatucci pleaded not guilty to the traffic violations alleged by Troopers Rae and Hensel, and trials on those violations occurred on December 1, 2021 in the New Hampshire Circuit Court, Third Circuit, District Division in Ossipee (“Ossipee District Court”). The troopers and Mrs. Amatucci testified in those proceedings. After each trial, Judge Melissa Countway issued a written order, finding that the troopers testified credibly and that the State had met its burden of proof. The court found that Mrs. Amatucci was guilty of both traffic violations. See State v. Amatucci, No. 464-2020-cr-270 (Ossipee Dist. Ct. Dec. 2, 2021) (“stop sign case”) (Doc. No. 11, at 21-22); State v. Amatucci, No. 464-2021-cr-559 (N.H. Cir. Ct., 3d Cir., Dist. Div.-Ossipee Dec. 2, 2021) (Doc. No. 1-1, at 8-9) (“yellow line case”).

Judge Countway's order in the stop sign case includes a statement of the court's concerns:

The . . . Defendant argued that she had the right to operate as she did, since she had arrived at the intersection first. The Court is concerned about the safety of other motorists under these circumstances and notes that the finding of guilty is intended to deter the Defendant from failing to stop and failing to yield to oncoming traffic in the manner described in this case.

Doc. No. 1-1 at 22. A similar expression of the court's concerns appears in the order in the yellow line case:

The . . . Defendant's argument was focused on her belief that her driving was legal. The Court is concerned about the safety of other motorists under these circumstances and notes that the finding of guilty is intended to deter the Defendant from conducting U-turns in the manner described in this case.

Doc. No. 1-1, at 9. Mrs. Amatucci did not appeal the judgments in those Ossipee District Court cases.

B. License suspension proceedings

Under New Hampshire law, the DMV Director is authorized to order a re-examination of a driver's abilities “for cause,” and states specifically that “age,” standing alone, does not constitute “cause.” RSA 263:7.^[3] Id. Trooper Rae summarized the three traffic stops described above, as well as the Ossipee District Court's concerns about Mrs. Amatucci, in a December 29, 2021, report to the DMV Bureau of Hearings. Trooper Rae's report concludes with a request that Mrs. Amatucci undergo a reexamination of her driving ability. Request for Admin. Action (Dec. 29, 2021) (Doc. No. 1-1, at 29 & 6-7). DMV Director Marasco approved Trooper Rae's request for re-examination of Mrs. Amatucci. The DMV scheduled successive examinations for Mrs. Amatucci in April, May, June, and August 2022. See Doc. No. 1-1, at 3 (Apr. 4, 2022 DMV Notice); Doc. No. 1-1, at 25 (May 6, 2022 DMV Notice); see also In re Amatucci, No. HR202211709, Report of Hearing Examiner (Aug. 11, 2022) (Doc. No. 9-1, at 4-6).

Mrs. Amatucci did not show up for those retests. After she failed to appear three times for scheduled re-examinations, Mrs. Amatucci's driver's license was suspended. See N.H. Code Admin. R. Saf-C 1009.02(g) (“[f]ailure to appear [three] times for a scheduled reexamination . . . shall result in an immediate suspension of the person's driver license”); see also Doc. No. 91, at 8.

Mrs. Amatucci requested a hearing on the suspension of her license and on the order that she retake the driver's test. A “Notice of Hearing” directed Mrs. Amatucci to appear for an administrative hearing on those matters. Doc. No. 9-1, at 22. That administrative hearing occurred on August 11, 2022. The evidence included Mrs. Amatucci's testimony and the statements of DMV representative Michael Mercier, as well as the December 2021 Report prepared by Trooper Rae, and proof that Mrs. Amatucci had failed to appear for three scheduled reexaminations. The Hearings Examiner's September 21, 2022 written decision, Doc. No. 9-1, at 4-6, states that the December 2021 Report gave the DMV Director “cause” to require Mrs. Amatucci to complete a reexamination. The Hearings Examiner also found that Mrs. Amatucci had failed to appear for three scheduled driver's tests, which resulted in the temporary suspension of her license. Id. at 5. The Hearings Examiner's decision allowed the license suspension for the multiple failures to appear to remain in effect and notified Mrs. Amatucci that she could retake the driver's test, pay the reinstatement fee, and comply with other DMV requirements to restore her driving privileges, and that she could appeal that decision to the New Hampshire Superior Court. Id.

Mrs. Amatucci did not appeal the DMV decision. Her driver's license remains suspended, and she has not appeared for any reexamination of her driving ability. She filed this lawsuit in 2022 claiming violations of her state and federal rights.

C. Legal claims

The operative claims remaining in this case after preliminary review are asserted under 42 U.S.C. § 1983 against Trooper Rae and Director Marasco in both their official and individual capacities:

1. Claims against Trooper Rae

A. Trooper Rae requested that the DMV order Mrs. Amatucci's driving ability to be retested based, in part, upon her advanced age and/or age-related disabilities, manifesting unlawful discrimination on those bases, in violation of her Fourteenth Amendment equal protection rights.

B. Trooper Rae requested that the DMV order Mrs. Amatucci's driving ability to be retested because of Mrs. Amatucci's expressed opinions regarding her rights and duties under state driving laws, her objections to the traffic stops, and/or her arguments challenging the traffic tickets, thereby subjecting her to unlawful retaliation for her exercise of First and Fourteenth Amendment rights.

2. Claims against Director Marasco

A. The re-examination was ordered without a prior hearing, in violation of her Fourteenth Amendment right to procedural due process.

B. The reexamination was ordered because of Mrs Amatucci's expressed opinions regarding her rights and duties under state driving laws, her objections to the traffic stops, and/or her arguments challenging the traffic tickets, thereby subjecting her to unlawful retaliation for her exercise of First and Fourteenth Amendment rights.

C. The DMV Director's suspension of Mrs. Amatucci's driver's license violated her right to due process as she was not afforded a hearing before that suspension,

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