Riley v. Colantuono et al

Filing 20

///MEMORANDUM AND ORDER approving 10 Report and Recommendations. Counts II, V, and VI of the original complaint are DISMISSED. Riley's motion to amend his complaint is GRANTED. Riley may proceed on Counts I, II, and III of his amended complaint. So Ordered by Chief Judge Mary M. Lisi.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
DANIEL JOHN RILEY
Plaintiff,
v.

C.A. N o . 12-175-ML

THOMAS COLANTUONO,
JOHN P. KACAVAS,
SETH R. AFRAME,
each in their individual capacity,
Defendants.
MEMORANDUM AND ORDER
MARY M . LISI, Chief Judge.
Daniel John Riley (“Riley”) has brought a pro se complaint
against former U.S. Attorney for the District of New Hampshire
Thomas Colantuono (“Colantuono”), current U.S. Attorney for the
District of New Hampshire John P. Kacavas (“Kacavas”), and current
Assistant U.S. Attorney for the District of New Hampshire Seth R.
Aframe

(“Aframe”, together

with

Colantuono

and

Kacavas, the

“Defendants”). Riley, who is currently a prisoner at the United
States Correctional Institution at Terre Haute, Indiana,1 seeks
compensatory, punitive, and exemplary damages for the loss of seven
firearms that were forfeited in a civil action. Riley’s complaint
was referred to a magistrate judge for preliminary review pursuant

The circumstances of Riley’s criminal conviction - to which
the instant litigation is related - are set forth in United States
v . Gerhard, 615 F.3d 7 (1st Cir. 2010).
1

to 28 U.S.C. § 1915A. On June 1 3 , 2012, Magistrate Judge David L .
Martin issued a Report and Recommendation (“R&R”) in which he
recommended that Riley’s claims of (Count II) substantive due
process, (Count IV) civil conspiracy, (Count V ) theft by deception,
and (Count VI) intentional infliction of emotional distress be
dismissed and that Riley be allowed to proceed with his claims of
(Count I ) procedural due process, and (Count III) equal protection.
The matter
complaint

before the Court is Riley’s motion

to include certain

to amend

factual allegations intended

his
to

preserve his claim of civil conspiracy which the R&R recommended
for dismissal. In his motion, Riley also states that he agrees to
the dismissal of Counts I I , V , and VI of his original complaint.
For the reasons that follow, the Court herewith adopts the R&R
in its entirety. Riley’s motion to amend his complaint is herewith
granted.
I . Factual Background and Procedural Posture2
Riley, together with two other individuals, was convicted
after providing firearms and explosives to two individuals who had
refused

to

surrender

following

federal

tax

convictions.

In

connection with these events, agents of the United States seized
seven firearms owned by Riley.

After Riley failed to answer a

2

In light of the thorough and detailed recitation of facts in
the R&R, the Court will only briefly summarize those facts that are
most pertinent.
2

civil forfeiture complaint, the firearms were ordered forfeited.
Subsequently, Riley sought to reopen the civil forfeiture, claiming
that he had not received adequate notice of the proceedings. When
his claim was denied, Riley appealed the denial to the First
Circuit Court of Appeals, which denied his appeal.

According to

Riley, he was deprived of his property without ever receiving
proper notice or being afforded an opportunity to be heard on the
matter. Specifically, Riley alleges that the Defendants filed
fraudulent documents to support a false representation to the New
Hampshire District Court that Riley’s attorney had been properly
served with the civil forfeiture complaint and other relevant
documents.
II.

Standard of Review
The Court, in reviewing a magistrate judge’s recommendation,

makes “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made.”

28 U.S.C. § 636(b)(1) (2009). “A judge of the court may

accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
R.

Civ.

P.

72(b)(3).

When

reviewing

a

Id.; see also Fed.
magistrate

judge’s

determination, the district court is required to review and weigh
the evidence presented to the magistrate judge. United States v .
Raddatz, 447 U.S. 6 6 7 , 675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
III.

The Report and Recommendation

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With respect to Riley’s civil conspiracy claim, the magistrate
judge recommended dismissal of the claim after concluding that the
factual allegations asserted by Riley were insufficient to support
such a claim. In his original complaint, Riley simply asserted that
the Defendants “acted in concert, and/or by agreement to accomplish
unlawful purposes or to accomplish lawful purposes by unlawful
means,” thus causing Riley damage. Complaint ¶ 2 7 . As correctly
assessed by the magistrate judge, these “in concert” allegations
are conclusory in nature and, where such claims are “not supported
by

additional

factual

allegations

describing

the

alleged

conspiracy,” they are not entitled to be assumed to be true. R&R
at 13 (quoting Bertuglia v . City of New York, 839 F. Supp.2d 703,
728 (S.D.N.Y. 2012)). Hence, the recommendation to dismiss the
civil conspiracy claim was appropriate in light of the omission of
factual allegations in the original complaint.
IV.

The Motion to Amend the Complaint
As previously noted, Riley is in agreement with the R&R that

Counts I I , V , and VI of his original complaint should be dismissed.
However, in order to preserve his claim of (Count I V ) civil
conspiracy, Riley has added certain factual allegations in his
amended complaint. Riley now asserts that the Defendants acted in
concert, and/or by agreement “(as is evidenced by their executing
certain documents together).” Amended Complaint ¶ 2 4 . In addition,
Riley claims that Colantuono and Aframe’s names appear together on

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an “initiating cover letter,” related to an allegedly fraudulent
affidavit of service, Amended Complaint at ¶ 8 , and that Kacavas’s
and Aframe’s names appear together on documents objecting

to

Riley’s inadequate notice claim. Id. at ¶ 1 3 .
IV. Discussion
In

a

preliminary

review

of

claims

against

governmental

officers or employees pursuant to 28 U.S.C. § 1915A, a plaintiff’s
factual

assertions

are

accepted

as

true

and

all

reasonable

inferences are drawn in the plaintiff’s favor. See e.g., Toolin v .
White, 89 Fed. Appx. 746, 2004 WL 528451 at *1 (1st Cir. 2004). In
order to state a claim for civil conspiracy, Riley must establish
“(1) the existence of an express or implied agreement among the
defendant officers to deprive him of his constitutional rights, and
(2) an actual deprivation of those rights resulting from that
agreement. A conspiracy to deprive a plaintiff of a civil rights
action by lying or concealing evidence might constitute such an
actionable deprivation.”

Ting v . United States, 927 F.2d 1504,

1512 (9th Cir. 1991)(citing Dooley v . Reiss, 736 F.2d 1392, 1394-95
(9th Cir.) cert. denied, 469 U.S. 1038, 105 S.Ct. 5 1 8 , 83 L.Ed.2d
407 (1984)). “To state a claim for conspiracy to violate one’s
constitutional rights . . . the plaintiff must state specific facts
to support the existence of the claimed conspiracy.” Burns v . Cty.
of King, 883 F.2d 819, 821 (9th Cir. 1989).
Riley maintains that he was deprived of adequate notice of the

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civil forfeiture proceedings and that the Defendants supported
their objections to his attempt to reopen such proceedings by
submitting fraudulent documents to the New Hampshire District
Court. The factual allegations supporting Riley’s claims that the
Defendants

acted

in

concert

or

by

agreement

are

limited

to

assertions that the Defendants executed these fraudulent documents
together, as evidenced by their respective signatures appearing
together on such documents. However, when such factual assertions
are accepted as true and all reasonable inferences are drawn in
Riley’s favor, the Court is not prepared to dismiss Riley’s claim
of civil conspiracy at this preliminary stage.
Conclusion
For the foregoing reasons, the Court adopts the R&R in its
entirety. Counts I I , V , and VI of the original complaint are
DISMISSED. Riley’s motion to amend his complaint is GRANTED. Riley
may proceed on Counts I , I I , and III of his amended complaint.

SO ORDERED.
/ s / Mary M . Lisi
Mary M . Lisi
Chief United States District Judge
July 2 6 , 2012

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