UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Janet Marie DelFuoco

v. Civil No. 19-cv-1245-JD Opinion No.

Richard Tracy1

O R D E R

Janet Marie DelFuoco, who is proceeding pro se and in forma

pauperis, brings claims under

, alleging that

Richard Tracy violated her First Amendment rights by

investigating her Facebook post and that he violated her First

and Fourth Amendment rights by obtaining and executing search

warrants for her Facebook account and home telephone and

computer.2 Tracy moves to dismiss the claims. DelFuoco objects

to the motion to dismiss.

Standard of Review

In considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), the court accepts the well-pleaded

1 Although the defendant is identified in the complaint as “Richard Tracey,” the correct spelling of his last name appears to be Tracy.

2Pursuant to the court’s preliminary review under

(e), the other defendants and the claims against them have been dismissed from the case. See July 8, 2020 Order (Doc. No. 8) (approving Report and Recommendation (Doc. No. 3)). factual allegations in the complaint as true and construes

reasonable inferences in the plaintiff’s favor. Breiding v.

Eversource Energy,

(1st Cir. 2019). “To

withstand a Rule 12(b)(6) motion, a complaint must contain

sufficient factual matter to state a claim to relief that is

plausible on its face.” Rios-Campbell v. U.S. Dept. of

Commerce,

(1st Cir. 2019). The purpose of the

plausibility standard is to “weed out cases that do not warrant

either discovery or trial.”

Ordinarily, a motion to dismiss is decided based on the

well-pleaded facts alleged in the complaint. Flores v. OneWest

Bank, F.S.B.,

(1st Cir. 2018). Nevertheless,

the court may also “consider extrinsic documents, such as

documents the authenticity of which are not disputed by the

parties; official public records; documents central to the

plaintiff’s claim; and documents sufficiently referred to in the

complaint without turning the 12(b)(6) motion into a motion for

summary judgment.” Newman v. Lehman Bros. Holdings Inc.,

(1st Cir. 2018).

In support of the motion to dismiss, Tracy submitted copies

of the criminal indictments and the information brought against

DelFuoco. DelFuoco refers to the indictments and the

prosecution in the complaint. Therefore, the court will

consider those documents provided by Tracy with his motion.

2 DelFuoco submitted 152 pages of exhibits, beginning with

her explanation of each exhibit. The exhibits include copies of

transcripts of interviews with people named in and involved with

the Facebook post, interviews with others who had interactions

with DelFuoco, a transcript of a telephone interview of DelFuoco

by Tracy, copies of the Facebook posts at issue in the

prosecution and other Facebooks posts by DelFuoco that appear to

have been exhibits in the criminal case against her, copies of

emails that appear to be from Tracy’s investigation, copies of

letters from DelFuoco’s medical and dental care providers,

copies of DelFuoco’s home telephone records, and copies of

applications for warrants to search DelFuoco’s accounts on

Facebook and YouTube. Ordinarily, much of that information

would not be considered for purposes of a motion to dismiss.

Tracy, however, does not object to the submitted documents and

relies on some of the information in his reply. Therefore, the

court will consider those documents for purposes of the motion

to dismiss.

Background

DelFuoco was involved in litigation with the Granite State

Credit Union beginning in 2016. She alleges that their banking

practices caused her financial and mental stress. She also

alleges that she made posts on Facebook “to vent because of all

3 the injustices done.” Doc. 1, at 3. It appears that Attorney

Clifford Gallant represented Granite State Credit Union in that

litigation.

One Sunday afternoon, a Granite State Credit Union employee

found DelFuoco’s post on Facebook about two New Hampshire judges

and an attorney.3 DelFuoco alleges that she removed the post

after two hours.4 The posts were brought to the attention of

Richard Tracy, Chief Investigator with the New Hampshire Office

of the Attorney General.5 DelFuoco alleges that Tracy was

familiar with her “because he had several interactions with

[her] because of her ex husband . . . and a loan scam with

G.S.C.U. [Granite State Credit Union].”

Tracy called DelFuoco and asked her what the post meant.

She said it was “nothing but a karma post.”

DelFuoco

alleges that despite her explanation, Tracy then investigated

the post. She alleges that the investigation included two

sealed search warrants to obtain information from Facebook in

3 DelFuoco does not allege the date when she made the post. Based on DelFuoco’s exhibits, it appears to have been made in early February of 2017.

4 DelFuoco contends she made one post with three statements rather than three separate posts. Because the difference is not material for purposes of the motion to dismiss, the court will refer to the statements as one post.

5 Because of past incidents, a marketing manager at Granite State Credit Union regularly monitored DelFuoco’s Facebook page and brought the post to Tracy’s attention.

4 March of 2017 and a search warrant for DelFuoco’s home phone.6

DelFuoco alleges that the materials obtained from the search

warrants included posts and videos of her “speaking freely of

the family court system and civil court and all the laws under

the New Hampshire judicial that have been broken and the state

was ignoring the complaints.” Id. at 5.

On January 5, 2018, a New Hampshire grand jury indicted

DelFuoco on charges of threatening two judges, Mark Weaver of

the New Hampshire Circuit Court and David Anderson of the New

Hampshire Superior Court, in violation of RSA 631:4-a.

DelFuoco’s Facebook post, which was the basis for the charges,

is provided in the indictments, as follows:

Post #1 – “as my aunt just asked me. . . . are you really going to be able to live with yourself with all the pain you are causing your family . . . . my response was yep, let them all die and suffer hear that Diane . . . suffer!”

Post #2 – “the judges and that [expletive] attorney are so next . . . . . so so next.”

Post #3 – “Donald . . dead, mother just lost it all, Diane sick, husband sick . . . next is weaver, Anderson, and gallant i will give you the shirt off my back and heal your diseases, but i am also just as capable of killing you off . . . . don’t ever cross me with corruption and greed.”

6 DelFuoco filed a motion to correct the report and recommendation, asserting that she was alleging that her home telephone was “wired,” which gave “the A.G. access to her home computer.” Doc. no. 7, at *1. The documents submitted by DelFuoco in support of her objection to the motion to dismiss show that the prosecutor issued a subpoena duces tecum to Fairpoint Communications for DelFuoco’s customer records.

5 Doc. 14-1, at 1.7 She also was charged in an information with

criminal threatening of an attorney, Clifford Gallant, in

violation of RSA 631:4. She was tried and found not guilty on

all of the charges.

In her complaint, DelFuoco characterizes her Facebook post

as a karma post. She states that she was explaining her belief

in the Wiccan religion. Pursuant to preliminary review,

DelFuoco’s claims against Tracy are as follows:

2. AG’s Office Investigator Richard Tracy violated Ms. DelFuoco’s First Amendment rights to free speech and to freely exercise her religion, in that Mr. Tracy investigated whether Ms. DelFuoco committed a crime when she published a post on Facebook expressing belief in the Wiccan religion and Karma, and caused Ms. DelFuoco to be arrested and prosecuted for criminal threatening as a result of the contents of her Facebook post.

3. Mr. Tracy unreasonably and improperly sought, obtained, and executed warrants to search Ms. DelFuoco’s Facebook account, home phone, and home computer, based on Ms. DelFuoco’s exercise of her First Amendment rights to free speech and to freely exercise her religion, in violation of Ms. DelFuoco’s Fourth Amendment rights: a. to be secure in her property, b. to privacy, and c. not to be subject to malicious prosecution.

7 The indictment shows the statements as three posts, while, as is noted above, DelFuoco contends it was one post with three statements. The difference is not material.

6 Discussion

Tracy moves to dismiss DelFuoco’s claims on the ground that

she cannot show that the investigation, including the searches,

and prosecution lacked probable cause. In support, Tracy relies

on the grand jury indictments to show that probable cause

existed to support the investigation, searches, and prosecution.

DelFuoco argues that the grand jury’s indictments were obtained

based on incomplete and wrongly obtained information and that

probable cause was lacking.

A. Investigation of Criminal Conduct

Tracy investigated DelFuoco after she posted statements on

Facebook that were deemed to be threats against two New

Hampshire judges and an attorney. In Claim 2, as construed on

preliminary review, DelFuoco alleges that Tracy’s investigation

caused her to be arrested and prosecuted on charges of

threatening, which violated her First Amendment rights to

freedom of speech and freedom to exercise her religion, Wiccan.

There is no constitutional right not to be investigated by

an authorized agency for suspected violations of the law.

Aponte v. Calderon,

(1st Cir. 2002) (citing

SEC v. Jerry T. O’Brien, Inc.,

(1984)); Spreadbury

v. Bitterroot Public Library,

(D.

Mont. 2012). Therefore, to the extent DelFuoco claims that she

7 had a constitutional right not to be investigated, the claim

fails.

B. Arrest and Prosecution

DelFuoco alleges that Tracy’s investigation lead to her

arrest and prosecution. She does not allege, however, that

Tracy, who is an investigator and not a police officer or a

prosecutor, arrested or prosecuted her. Those decisions were

made by others. DelFuoco has not shown that Tracy is liable for

the decisions to arrest and prosecute her.

Even if Tracy were deemed to be involved in DelFuoco’s

arrest and prosecution and that his involvement could be a basis

for liability, the claim would fail. An essential element of

claims of arrest and prosecution in retaliation for exercising

First Amendment rights is that the arrest and prosecution lacked

probable cause.8 Nieves v. Bartlett,

(2019). Probable cause exists when an officer or prosecutor

“acting upon apparently trustworthy information, reasonably can

conclude that a crime has been or is about to be committed and

that the suspect is implicated in its commission.” United

States v. Merritt,

(1st Cir. 2019).

8 DelFuoco alleges no facts that would raise the narrow exception that may apply when probable cause exists but the arrest is wholly discretionary. Nieves, 139 S. Ct. at 1727.

8 A grand jury returned indictments against DelFuoco based on

her Facebook post, which establishes a presumption of probable

cause. Gonzalez Rucci v. I.N.S.,

(1st Cir.

2005). Although that presumption may be rebutted by showing

that the indictment was wrongfully obtained, DelFuoco alleges no

facts to show that happened in her case. See

Her arguments

in her objection that the indictments were improperly obtained

because the grand jury was not informed of her explanation of

the Facebook post do not invalidate them. See United States v.

Williams,

(1992).

Because a grand jury returned facially valid indictments

against DelFuoco on the charges of threatening the judges,

probable cause existed to support her arrest and prosecution.9

Therefore, DelFuoco’s allegations are not sufficient to support

Claim 2 against Tracy.

C. Search Warrants

In Claim 3, DelFuoco alleges that Tracy improperly sought

and obtained warrants to search her Facebook account, her home

telephone, and her computer in violation of her First and Fourth

Amendment rights. “The Fourth Amendment requires that search

9 A not guilty verdict on a charge does not establish that the arresting officer or the prosecutor lacked probable cause to support the arrest and prosecution. Gillis v. Chase,

(1st Cir. 2018).

9 warrants be issued only upon a showing of probable cause.”

United States v. Mendoza-Maisonet,

(1st Cir.

2020). Probable cause for a search warrant exists “when the

totality of the circumstances create a fair probability that

contraband or evidence of a crime will be found in a particular

place.” United States v. Adams, --- F.3d ---,

,

at *4 (1st Cir. Aug. 18, 2020); see also United States v.

Tanguay,

(1st Cir. 2015); United States v.

Schaefer,

(1st Cir. 1996). An affidavit

submitted in support of a search warrant “must demonstrate

probable cause in some trustworthy fashion.” Adams,

, at *5.

Tracy contends that DelFuoco’s Facebook post, which was the

basis for the search warrants, establishes that probable cause

existed to support the search warrants.10 RSA 631:4-a, II, which

pertains to the threats against the judges, provides:

10In Exhibit K, DelFuoco provides copies of documents that she describes as a subpoena and search warrants. Doc. 15-1, at 125-134. Exhibit K actually includes part of Tracy’s investigation and arrest report, dated December 5, 2017; a subpoena duces tecum from the Office of the Attorney General (N.H.) to Fairpoint Communications, Inc., seeking subscriber records for a specific IP address that showed DelFuoco was the customer; and the response from the custodian of records for Fairpoint. Exhibit L includes search warrants for DelFuoco’s Facebook and YouTube accounts with the supporting affidavits and other information and pages from the continuation of Tracy’s investigation report, dated February 9, February 15, and April 20, 2017. Doc. 15-1, at 136-152.

10 A person is guilty of a class B felony if he or she threatens bodily injury or threatens to commit any other crime against a sitting member of the general court, an executive councilor, a past or present governor, member of the judiciary, marital master, or member of their immediate family, for the purpose of influencing such official’s action or in retaliation for action taken as part of an official’s government duties.

RSA 631:4(d), which pertains to the threat against the attorney,

provides: “A person is guilty of criminal threatening when: (d)

The person threatens to commit any crime against the person of

another with a purpose to terrorize any person.”

DelFuoco wrote: “let them all die and suffer,” “the judges

and that [expletive] attorney are so next . . . . . so so next,”

“next is weaver, Anderson, and gallant,” and i am also just as

capable of killing you off . . . . don’t ever cross me with

corruption and greed.” Those statements appear to be threats to

kill the judges and the attorney. As such, DelFuoco’s Facebook

post, which was provided in support of the search warrant

applications, shows a likelihood that she threatened Judges

Weaver and Anderson and Attorney Gallant with death in violation

of the cited statutes. In addition, the grand jury found

probable cause to indict DelFuoco for threatening the judges

based on those statements.

Because probable cause existed to support the search

warrants, DelFuoco has not alleged facts to show that her Fourth

11 Amendment rights were violated by the searches of her Facebook

account, home telephone, and computer.

D. Summary

DelFuoco has not alleged facts that show Tracy violated her

First Amendment rights by investigating her for criminal conduct

based on her Facebook post. She also has not alleged facts to

support her claim that Tracy violated the First and Fourth

Amendment rights by searching her Facebook account and records

for her home telephone and computer. Therefore, her complaint

does not state plausible claims against Tracy.

Conclusion

For the foregoing reasons, Richard Tracy’s motion to

dismiss (document no. 14) is granted. Dismissal of Claims 2 and

3 resolves the remaining claims, and the case is dismissed in

its entirety.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge September 22, 2020 cc: Janet Marie DelFuoco, pro se. Seth Michael Zuracki, Esq. Samuel R. V. Garland, Esq.

12