Maggi v. McComiskey
///ORDER granting 8 defendant's Motion to Dismiss for Failure to State a Claim. Plaintiff's claims dismissed with prejudice. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Case No. 17-cv-109-SM
Opinion No. 2017 DNH 228
O R D E R
In 2014, Gregory Maggi was convicted of numerous criminal
charges, including seven counts of felonious sexual assault upon
a child between the age of 13 and 15, as well as multiple counts
of simple assault and distribution of a controlled substance (to
He was, however, acquitted of some charges
arising out of that very same conduct - a fact that prompted
Maggi was sentenced to serve no less than 17
and one-half years to 35 years in prison.1
He was also ordered
to have no contact with his victims or their families.
was ordered to pay restitution to each of his victims in an
amount not to exceed $10,000 (although the record is unclear, it
appears that there were two victims of Maggi’s repeated sexual
On appeal, the New Hampshire Supreme Court affirmed
Maggi was sentenced to serve five (5) consecutive sentences
of 3.5 to 7 years in prison. The trial court imposed additional
incarcerative sentences as well, but suspended them.
Maggi’s convictions, observing that evidence of his guilt was
The defendant in this case is one of Maggi’s victims.
her, Maggi seeks $5 million in damages, asserting that she
conspired “with authorities” to deprive him of a fair trial, in
violation of 42 U.S.C. § 1985(3); maliciously prosecuted him;
and defamed him, in violation of a state criminal statute.
Defendant moves to dismiss each of Maggi’s claims, saying none
states a viable cause of action.
That motion is granted.
Count one of Maggi’s amended complaint alleges that the
defendant violated 42 U.S.C. § 1985(3) by “conspir[ing] with
authorities to deprive Mr. Maggi of his Constitutional right to
a fair trial by changing her story multiple times, withholding
information from the defense, and by lying to investigators.”
Amended Complaint (document no. 4) at para. 22.
fails to plausibly set forth the essential elements of a viable
claim under 42 U.S.C. § 1985(3).
Most notably, it lacks a
plausible allegation that there was “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind
the conspirators’ action.”
Perez-Sanchez v. Pub. Bldg. Auth.,
531 F.3d 104, 107 (1st Cir. 2008) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)).
See also Soto-Padro v.
Pub. Bldgs. Auth., 675 F.3d 1, 4 (1st Cir. 2012); Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996); Veale v. Furness, No.
10-CV-147-JL, 2012 WL 359700, at *3–4 (D.N.H. Feb. 2, 2012).
In Count Two of his complaint Maggi advances a claim for
Specifically, he alleges that the
defendant “cooperated with state prosecutors to bring charges
against Mr. Maggi for incidents that did not occur and should
not warrant criminal charges even if they had been true.”
Amended Complaint at para. 24.
That claim falls short for
There are four elements to a viable common law claim for
(1) the plaintiff was subjected to a criminal
prosecution or civil proceeding instituted by the
defendant; (2) without probable cause; (3) with
malice; and (4) the prior action terminated in the
Because count two of Maggi’s amended complaint does not
reference the Constitution, the Bill of Rights, or 42 U.S.C. §
1983, the court has assumed he is advancing a claim under state
common law, rather than the Fourth Amendment to the U.S.
Farrelly v. City of Concord, 168 N.H. 430, 445, 130 A.3d 548,
560 (2015) (citation omitted).
Maggi’s amended complaint falls
decidedly short and likely fails to adequately allege even a
single essential element of his claim.
First, Maggi has pointed to no New Hampshire case law
holding that, for malicious prosecution purposes, a victim
“initiates a criminal proceeding” by making a report to police.
Second, under the circumstances of this case, Maggi’s indictment
by a grand jury likely precludes him from establishing that
charges were filed against him without probable cause.
e.g., Ojo v. Lorenzo, 164 N.H. 717, 727-28 (2013).
See also New
Hampshire v. Maggi, No. 2015-0029 (N.H. Supr. Ct. May 20, 206)
at 2 (affirming Maggi’s convictions and noting that another
victim of Maggi’s sexual assaults corroborated the defendant’s
claims and testified that she witnessed Maggi having sex with
the defendant; the existence of probable cause to charge Maggi
did not, therefore, hinge solely upon the defendant’s claims).
Third, it is certainly open to debate whether Maggi’s amended
complaint adequately alleges that the defendant acted with the
requisite malice (that is, with a purpose other than bringing a
criminal to justice).3
But, in any event, it is plain that the criminal case
against Maggi did not “terminate in his favor.”
At trial, it
was proved, beyond a reasonable doubt, that he repeatedly
sexually assaulted the defendant, that he committed simple
assault against her, and that he unlawfully provided her with
As a consequence, he will remain
incarcerated for anywhere between 17 and one-half to 35 years.
Additionally, Maggi was ordered to pay the defendant restitution
in an amount not to exceed $10,000.
It would strain the notions
of common sense and reasonableness to conclude that the
underlying criminal trial terminated in Maggi’s favor.
in the context of a malicious prosecution case, the New
Hampshire Supreme Court consistently refers to the favorable
termination of a “proceeding” or “action,” not a “claim” or
Consequently, one must look to the overall outcome of
Defendant also asserts that Maggi’s complaint is untimely,
since he filed it more than three years after his indictment.
See N.H. Rev. Stat. Ann. (“RSA”) 508:4 (establishing a threeyear limitations period for civil actions). But, because one of
the elements of a viable malicious prosecution claim is evidence
that the underlying criminal proceedings terminated in the
plaintiff’s favor, that cause of action likely did not accrue
until the jury returned its verdict in September of 2014,
acquitting Maggi of some of the many charges against him.
the “proceeding,” rather than individually assess the import of
a jury’s verdict on each particular claim, count, or charge.
Here, the criminal charges against Maggi all arose out of the
same course of conduct - his repeated sexual assaults upon the
His numerous convictions for that conduct establish
that, as a matter of law, he was not wrongfully accused or
See, e.g., Kossler v. Crisanti, 564 F.3d 181, 187
3d Cir. 2009) (“Consistent with this purpose [of the ‘favorable
termination’ requirement], we have held that a prior criminal
case must have been disposed of in a way that indicates the
innocence of the accused in order to satisfy the favorable
And, of course, there are compelling public policy reasons
to conclude that, given the particular facts of this case, the
New Hampshire Supreme Court would not view Maggi’s acquittal on
a few of the charges against him as representing a “successful”
The court need not address whether, under certain
circumstances, an individual acquitted of some, but not all,
charges against him might bring a successful claim for malicious
prosecution. Such a case might, for example, involve a
situation in which the defendant is charged with distinct
crimes, arising from distinct events, and acquitted on some of
those charges. See Janetka v. Dabe, 892 F.2d 187 (1989)
(defendant convicted of disorderly conduct toward a third party,
but acquitted of resisting an officer’s attempt to arrest); Uboh
v. Reno, 141 F.3d 1000 (11th Cir. 1998) (defendant convicted of
credit card fraud, but acquitted of drug trafficking).
termination of the criminal proceedings against him.
generally McGranahan v. Dahar, 119 N.H. 758, 769-70 (1979).
Given his numerous convictions, all related to the same
series of criminal acts, as well as his lengthy incarcerative
sentence, and the trial court’s substantial restitution order,
Maggi seeks to dissect the jury’s verdict, isolate those few
charges on which he was acquitted, and present his claims
unburdened by the actual context of his prosecution.
to point to any precedent that would countenance such a
manipulation of the common law.
Parenthetically, the court
notes that federal courts have specifically rejected similar
malicious prosecution claims under the Fourth Amendment when, as
here, the criminal charges on which the plaintiff (criminal
defendant) was acquitted arose out of the same facts and
circumstances as those charges on which that individual was
See, e.g., Kossler, 564 F.3d at 188 (“When the
circumstances - both the offenses as stated in the statute and
the underlying facts of the case - indicate that the judgment as
a whole does not reflect the plaintiff’s innocence, then the
plaintiff fails to establish the favorable termination
As the New Hampshire Supreme Court has observed, “The law
does not, and should not, allow recovery in tort by all persons
accused of crimes and not convicted.”
McGranahan, 119 N.H. at
That court went on to note:
There is no guarantee in our society that only guilty
persons will be accused and arrested. Except in
extreme cases, for which malicious prosecution or
abuse of process are adequate remedies, a person
wrongfully accused of a crime must bear that risk,
lest those who suspect wrongful activity be
intimidated from speaking about it to the proper
authorities for fear of becoming embroiled themselves
in the hazards of interminable litigation.
Id. (citations omitted).
Here, it can hardly be said that Maggi
was “wrongfully accused” of sexually assaulting the defendant,
nor can it be said that this is one of the “extreme cases”
warranting recovery through a claim for malicious prosecution.
The fact that Maggi was acquitted of only a few of the many
related charges against him does not mean that the criminal
“proceeding” against him terminated in his favor.
contrary, his numerous convictions all arising out of the same
course of conduct preclude him from establishing that essential
element of his claim.
Count two of the amended complaint fails
to state a viable cause of action.
Finally, in count three of his amended complaint, Maggi
asserts that the defendant engaged in “criminal defamation,” in
violation of RSA 644:11, by “knowingly communicating false
statements about Mr. Maggi to the police during their
investigation which resulted in Mr. Maggi’s criminal trial.”
Amended Complaint at para. 28.5
Maggi has not, however, shown
that there is a private right of action under that state
The court presumes, therefore, that he
intended to bring a common law claim for defamation.
the New Hampshire Supreme Court has recognized, “both formal and
informal complaints and statements to a prosecuting authority
[are treated] as part of the initial steps in a judicial
proceeding” and are entitled to “absolute immunity.”
McGranahan, 119 N.H. at 769.
Indeed, the court went on to hold
that the “same absolute immunity or privilege applies to
statements made to the city or county attorney or those
investigating a suspected crime.”
See also Pickering v.
Frink, 123 N.H. 326, 328 (1983) (“New Hampshire law recognizes
that certain communications are absolutely privileged and
N.H. Rev. Stat. Ann. ch. 644:11 provides that, “A person is
guilty of a class B misdemeanor if he purposely communicates to
any person, orally or in writing, any information which he knows
to be false and knows will tend to expose any other living
person to public hatred, contempt or ridicule.”
therefore immune from civil suit.
Absolute privilege bars an
injured party from recovering any damages and does not depend on
the defendant’s good faith.”).
Count three of Maggi’s complaint fails to state a viable
cause of action.
Defendant’s Request for Attorney’s Fees.
Invoking New Hampshire’s common law, defendant moves the
court for an award of reasonable attorney’s fees.
Harkeem v. Adams, 117 N.H. 687, 691 (1977) (“Where an individual
is forced to seek judicial assistance to secure a clearly
defined and established right, which should have been freely
enjoyed without such intervention, an award of counsel fees on
the basis of bad faith is appropriate.”).
In discussing the
scope and import of Harkeem and its progeny, the New Hampshire
Supreme Court has explained:
The recognized scope of authority to award fees thus
expanded from compensation for those who are forced to
litigate in order to enjoy what a court has already
decreed, to include compensation for those who are
forced to litigate against an opponent whose position
is patently unreasonable. In such cases a litigant’s
unjustifiable belligerence or obstinacy is treated on
an objective basis as a variety of bad faith, and made
just as amenable to redress through an award of
counsel fees as would be the commencement of
litigation for the sole and specific purpose of
causing injury to an opponent. Thus we have
recognized a constitutionally created court’s power to
award counsel fees in any action commenced, prolonged,
required or defended without any reasonable basis in
the facts provable by evidence, or any reasonable
claim in the law as it is, or as it might arguably be
held to be.
Keenan v. Fearon, 130 N.H. 494, 501–02 (1988) (citations
omitted) (emphasis supplied).
Here, in support of her motion for an award of reasonable
attorney’s fees, the defendant points out that none of Maggi’s
claims has even remote support in the law; even generously
construing Maggi’s claims in the light most favorable to him,
each is frivolous on its face.
Additionally, given Maggi’s ad
hominem attacks on the defendant’s character in his pleadings,
there is a strong suggestion that he initiated this litigation,
at least in part, to harass, intimidate, and/or humiliate her.
Indeed, by bringing this baseless action against the defendant,
he has publically identified her as a victim of his sexual
assaults and thereby undermined the substantial efforts
undertaken at the state trial-court level to protect her
anonymity (additionally, Maggi has circumvented the trial
court’s specific order that he have no contact, whether direct
or indirect, with the defendant).
In light of the foregoing, the defendant is granted leave,
if she so chooses, to file a well-supported memorandum in
support of her request for an award of reasonable attorney’s
The court notes, however, that this case does present a
few factors that might counsel against pursuit of an award (or
at least a full award) of attorney’s fees, including that Maggi
is incarcerated with no apparent means to pay an award (and, of
course, he has already been ordered to pay the defendant
And, there is some suggestion that
Maggi suffers from “disabilities” that might prevent him from
fully comprehending the nature of this proceeding and/or the
claims he advances.
See Amended Complaint at 8, n.1 (“Due to
Mr. Maggi’s disabilities, this complaint was prepared with help
from his family.”).
On balance, then, even if the court were to grant
defendant’s request for an award of attorney’s fees, that award
might be substantially smaller than the amount she has actually
See generally Amatucci v. Hamilton, 2007 WL 2993824,
2007 DNH 126 (D.N.H. Oct. 11, 2007) (granting a substantially
reduced award of attorney’s fees after balancing all relevant
factors, including the non-prevailing party’s circumstances and
apparent mental health issues).
For the foregoing reasons, as well as those set forth in
defendant’s memoranda (documents no. 8-1 and 17), defendant’s
motion to dismiss (document no. 8) is granted.
are dismissed, with prejudice, for failure to state a claim.
To the extent Maggi’s objection (document no. 16) might
properly be viewed as a motion to amend his complaint, it is
Maggi apparently wishes to add an additional count to
his complaint, in which he advances a claim for “malicious use
of process” against the defendant.
For the reasons discussed
above, such an amendment to his complaint would be futile, as
the undisputed facts of this case do not give rise to a viable
claim for malicious use of process.
See generally Mirra v.
Fynes, 2014 WL 716692, No. 13-1677 (E.D. Pa. Feb. 25, 2014).
The Clerk of Court shall enter judgment in favor of the
defendant on all counts and close the case.
file a well-supported motion (with supporting documentation) for
an award of attorney’s fees, the case shall be reopened, and
Maggi shall have 30 days within which to respond.
Steven J. McAuliffe
United States District Judge
October 23, 2017
Gregory Maggi, pro se
Hilary H. Rheaume, Esq.
Lara J. Saffo, Esq.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?