United States District Court, D. New Hampshire
Adelbert H. Warner, II, et al.
James F. McLaughlin Opinion No. 2017 DNH 139
Adelbert H. Warner, II, pro se.
A. Currant, Esq. J. Randall Ismay, pro se.
Olsen, pro se.
Kenneth J. Rowe, pro se.
DICLERICO, JR. UNITED STATES DISTRICT JUDGE
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.
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
Motion for Relief from Judgment and Supplement
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.
court has considered the additional evidence provided by
Warner through his motion to supplement his motion for relief
Standard of Review
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).”
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 ...