Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Warner v. McLaughlin

United States District Court, D. New Hampshire

August 30, 2016

Adelbert H. Warner, II, et al
v.
James McLaughlin Opinion No. 2016 DNH 154

          John A. Curran, Esq.

          J. Randall Ismay, pro se

          Kyle Olsen, pro se

          Kenneth J. Rowe, pro se

          Adelbert H. Warner II, pro se

          ORDER

          Joseph DiClerico, Jr. United States District Judge.

         Adelbert 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).

         Because 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 complaint.

         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.

         Ismay 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 prejudice.

         Standard of Review

         The 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.

         On 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).

         Discussion

         The 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 litigation costs.

         As a 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.