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Warner v. McLaughlin

United States District Court, D. New Hampshire

July 17, 2017

Adelbert H. Warner, II, et al.
v.
James F. McLaughlin Opinion No. 2017 DNH 139

          Adelbert H. Warner, II, pro se.

          John A. Currant, Esq. J. Randall Ismay, pro se.

          Kyle Olsen, pro se.

          Kenneth J. Rowe, pro se.

          ORDER

          JOSEPH DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         Adelbert H. Warner, II, along with three other prisoners, proceeding pro se, brought suit against James McLaughlin, a detective in the Keene, New Hampshire, Police Department. The plaintiffs alleged 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 interested participant. The court dismissed all claims. Warner seeks relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(1) or (2) and also moves to supplement his motion for relief. McLaughlin objects.

         After Warner filed his motion for relief from judgment, Nicholas Rowe and Randi L. Miller, each proceeding pro se, filed motions to join Warner's suit against McLaughlin. McLaughlin objected to the motions and also moved to strike the motions. Miller and Rowe filed objections to the motion to strike.

         I. Motion for Relief from Judgment and Supplement

         Warner seeks relief from judgment, asserting that the court made mistakes of fact in approving, as modified, the report and recommendation to dismiss his claims that McLaughlin violated the ECPA. Warner then moved to supplement his motion “to provide additional examples of [McLaughlin's] evidence fabrications, supported by evidence re-acquired by Warner from the ‘Supporting Affidavit' produced by [McLaughlin] for Warner's case, and contained with the Michigan State Police report Incident No. 06-911-08.” McLaughlin objects to both motions.

         The court has considered the additional evidence provided by Warner through his motion to supplement his motion for relief from judgment.

         A. Standard of Review

         Rule 60(b) allows the court to relieve a party from a final judgment based on a variety of reasons listed in (1) through (6). Relief under Rule 60(b) is extraordinary, so that a party seeking relief “must establish, at the very least, that his motion is timely; that exceptional circumstances exist, favoring extraordinary relief; that if the judgment is set aside, he has the right stuff to mount a potentially meritorious claim or defense; and that no unfair prejudice will accrue to the opposing parties should the motion be granted.” Rivera- Velazquez v. Hartford Steam Boiler Inspection & Ins. Co., 750 F.3d 1, 3-4 (1st Cir. 2014). Rule 60(b)(1) allows the court to grant relief because of “mistake, inadvertence, surprise, or excusable neglect, ” and Rule 60(b)(2) allows the court to grant relief based on “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).”

         B. Background

         The plaintiffs alleged that McLaughlin violated § 2518(8)(a) by using computer word processing software to copy their communications into affidavits. They also asserted that McLaughlin altered and fabricated evidence against them. They argued that their claims were not untimely because they were entitled to equitable tolling. The plaintiffs asked that their convictions be vacated and ...


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