United States District Court, D. New Hampshire
Adelbert H. Warner, II, et al
James McLaughlin Opinion No. 2016 DNH 154
A. Curran, Esq.
Randall Ismay, pro se
Olsen, pro se
Kenneth J. Rowe, pro se
Adelbert H. Warner II, pro se
DiClerico, Jr. United States District Judge.
H. Warner, II, Kenneth J. Rowe, Kyle Olsen, and J. Randall
Ismay, who are prisoners proceeding pro se, brought suit
against James McLaughlin, a detective in the Keene, New
Hampshire, Police Department. The plaintiffs allege that
McLaughlin violated the Electronic Communications Privacy Act
(“ECPA”), 18 U.S.C. § 2510, et seq., when he
intercepted their on-line communications while posing as an
adolescent boy. As a result of McLaughlin's
investigations, all four of the plaintiffs were convicted on
charges of the distribution and/or production of child
pornography and received lengthy sentences. See United
States v. Warner, 08-cr-63-PLM (W.D. Mich. Aug. 20,
2008); United States v. Rowe, 10-cr-19-KKC-REW (E.D.
Ky. Feb. 11, 2011); United States v. Olsen,
10-cr-374 (N.D. Ill. Jan. 27, 2011); United States v.
Ismay, 08-cr-39-AG (C.D. Cal. July 26, 2010).
the plaintiffs are pro se prisoners, the magistrate judge
conducted a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A(a) and Local Rule 4.3(d)(1) and also
ruled on the plaintiffs' motion for a default judgment.
The magistrate judge issued a report and recommendation on
June 9, 2016, and Warner, Rowe, and Olsen filed objections.
That report and recommendation was vacated on August 12,
2016, after Ismay filed a “Certification” that he
intended to join in the suit despite having not signed the
magistrate judge issued a second report and recommendation
for preliminary review of the complaint and review of the
motion for default judgment, which included consideration of
Ismay's claim. The magistrate judge again recommended
that the complaint be dismissed and that the motion for a
default judgment be denied. The objections filed in response
to the first report and recommendation, along with
supplemental filings by Warner and Rowe, are considered here.
has now moved to voluntarily dismiss his claim without
prejudice. Because McLaughlin has not yet filed an answer,
the motion is construed as a notice of dismissal under
Federal Rule of Civil Procedure 41(a)(1)(A), which operates
to dismiss Ismay's claim against McLaughlin without
court conducts a de novo review of those portions of the
magistrate judge's report and recommendation to which an
objection is filed. 28 U.S.C. § 636(b)(1). The court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” Id. Warner, Rowe, and Olsen filed
objections, but Ismay did not.
preliminary review under § 1915A, the court uses the
same standard that applies to motions to dismiss under
Federal Rule of Civil Procedure 12(b)(6). See Legate v.
Livingston, 822 F.3d 207, 209-10 (5th Cir. 2016);
De'lonta v. Johnson, 708 F.3d 520, 524 (4th Cir.
2013). Under Rule 12(b)(6), “the complaint must contain
‘enough facts to state a claim to relief that is
plausible on its face.'” Miller v. Town of
Wenham, ___ F.3d ___, 2016 WL 4206375, at *3 (1st Cir.
Aug. 20, 2016). The court takes the complaint in the light
most favorable to the plaintiffs but disregards conclusory
statements. Wilson v. HSBC Mortg. Servs., Inc., 744
F.3d 1, 7 (1st Cir. 2014). In applying the standard, the
court liberally construes the pleadings of pro se plaintiffs.
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 75
(1st Cir. 2014).
plaintiffs allege that McLaughlin violated § 2518(8)(a)
by using computer word processing software to copy their
communications to affidavits. They also assert that
McLaughlin altered and fabricated evidence against them. They
contend that their claims are not untimely because they are
entitled to equitable tolling. The plaintiffs ask that their
convictions be vacated and expunged from their records and
seek statutory damages along with attorneys' fees and
preliminary matter, Rowe charges that the magistrate judge
improperly vacated the first report and recommendation and
then issued a second report and recommendation. Rowe is
mistaken. Because his fellow plaintiff, Ismay, failed to sign
the complaint, his claim was not considered in the first
report and recommendation. Ismay, however, filed a
certification to join in the complaint after the first report
and recommendation issued. Therefore, the magistrate judge
properly vacated the first report and recommendation, in
order to consider Ismay's claim, and then ...