Riley v. Colantuono et al

Filing 37

///ORDER approving 36 Report and Recommendation: The defendants motion to dismiss the amended complaint is GRANTED. Riley's amended complaint is dismissed in its entirety and the clerk is directed to enter judgment in favor of the defendants. 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. No. 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.
The

plaintiff

in

this Bivens1

action,

Daniel

John

Riley

(“Riley”), brought a pro se complaint against Assistant U.S.
Attorney

Seth

R.

Aframe

(“Aframe”),

Thomas

Colantuono

(“Colantuono”) and John P. Kacavas (“Kacavas”), seeking damages for
the loss of seven firearms that were forfeited in a civil action
related

to

Riley’s

criminal

conviction.

See

United

State

v.

Gerhard, 615 F.3d 7 (1st Cir. 2010). Following a preliminary review
of Riley’s original complaint (Docket #1), this Court issued a
Memorandum and Order (Docket # 20), dismissing all but Riley’s
civil conspiracy claim and allowing Riley to proceed on Counts I,
II, and III of his amended complaint (Docket #18-1, # 21).
On August 14, 2012, the defendants filed a “Motion to Dismiss

1

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619) (1971).
1

for Failure to State a Claim or, in the Alternative, Motion for
Summary Judgment.” (Docket # 26). Ordinarily, this Court does not
accept motions that are stated in the alternative; however, in this
case, the motion was filed in the District Court of the District of
New Hampshire and Riley had already filed a timely objection before
the motion was referred to Magistrate Judge Sullivan. In his
objection, Riley conceded that he had no facts to support his
claims against Colantuono and Kacavas and requested that the claims
against them be dismissed. (Docket # 27 at 1-2).
The

matter

is

now

before

the

Court

on

a

Report

and

Recommendation (“R&R”) issued by the Magistrate Judge on February
5, 2013 (Docket # 36). Objections to the R&R were due on February
22, 2013; none were received. Although the Court is under no
obligation to review an R&R if such review has not been requested
in a timely manner, Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985); United States v. Valencia-Copete, 792 F.2d 4
(1st Cir. 1986), the Court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1) (2009).

see also Fed. R. Civ. P.

72(b)(3).
The Court has reviewed the thorough and detailed R&R and
agrees with the Magistrate Judge’s finding that Riley’s remaining
claims against Aframe are barred by Aframe’s absolute prosecutorial
immunity. Therefore, the Court adopts the recommendation that those

2

claims be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

The

Court further agrees with the Magistrate Judge’s conclusion that,
because Aframe’s absolute immunity is dispositive of this case,
there is no need to reconsider Riley’s accusations against Aframe
under the summary judgment standard.
For these reasons, the Court adopts the R&R with respect to
the recommendation that the defendant’s motion to dismiss the
amended complaint be granted pursuant to Fed. R. Civ. P. 12(b)(6)
based on Aframe’s absolute immunity from suit. The Court further
determines that dismissal of the case on that ground obviates the
need for considering the defendants’ alternative motion for summary
judgment. The defendants’ motion to dismiss the amended complaint
is GRANTED. Riley’s amended complaint is dismissed in its entirety
and the clerk is directed to enter judgment in favor of the
defendants.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
March 5, 2013

3