Warner et al v. McLaughlin

Filing 51

ORDER approving as modified by this order 37 Report and Recommendation; granting 50 Ismay's Motion to Withdraw/construed as a Notice of Voluntary Dismissal without prejudice; terminating as moot 6 Motion for Default Judgment. Complaint is dismissed with prejudice as to Warner, Rowe and Olsen. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Adelbert H. Warner, II, et al
v.

Civil No. 16-cv-034-JD
Opinion No. 2016 DNH 154

James McLaughlin

O R D E R
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.

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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
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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.
mistaken.

Rowe is

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 issued a report and recommendation as to the
claims of all of the plaintiffs.

As noted above, however, Ismay

has now voluntarily dismissed his claim.
A.

Report and Recommendation and Objections
The magistrate judge found that the plaintiffs’ allegations

did not demonstrate that McLaughlin’s recording of their
communications violated § 2518(8)(a) and recommended dismissal
of the complaint for that reason.
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The magistrate judge also

found that the action was barred by the two-year statute of
limitations, § 2520(e), and that the plaintiffs had not alleged
grounds to support tolling of the limitation period.

With

respect to the motion for a default judgment, the magistrate
judge noted that the plaintiffs had correctly conceded that
default judgment should not enter and recommended the motion be
dismissed.
Warner objects to the report and recommendation,
challenging the standard of review, the report on the merits of
the claims, the application of the statute of limitations, and
failure to find that his motion for default judgment was moot.
In addition to challenging the magistrate’s authority to vacate
the first report and recommendation, Rowe asserts that the
plaintiffs alleged facts to show that McLaughlin violated
§ 2518(8)(a) and that the statute of limitations does not apply
because he is innocent.

Olsen also disputes the recommendation

to dismiss the claims on the merits and argues that his
counsel’s ineffective representation prevented Olsen from
knowing that McLaughlin violated § 2518(8)(a).

B.

Relief Sought
The plaintiffs ask for statutory damages and also ask the

court to vacate their convictions.

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Claims cannot be brought for

damages under 42 U.S.C. § 1983 that “would render a conviction
invalid” unless the plaintiff can show “that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.”
512 U.S. 477, 487 (1994).

Heck v. Humphrey,

Generally, 28 U.S.C. § 2255 is the

proper means to challenge a federal conviction, but the
plaintiffs have not brought petitions under § 2255.
Although 18 U.S.C. § 2520(b)(1) includes equitable relief as a
remedy for a violation, vacating a conviction is not within the
realm of equitable relief that might be granted under the
statute.
C.

Violation of Section 2518(8)(a)
Detective McLaughlin worked undercover, on the internet, to

investigate child pornography.

Through his investigations, he

intercepted and recorded emails and other electronic
communications from individuals all over the county, including
the plaintiffs in this case.

McLaughlin then sent copies of his

recordings to law enforcement agencies with jurisdiction over
the plaintiffs.

Each of the plaintiffs was convicted of child

pornography offenses based on evidence provided by McLaughlin.

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During Ismay’s trial, McLaughlin explained the process he
used to collect and copy internet communications.

The

plaintiffs, all federal prisoners, met when they were
incarcerated together in a federal prison in Marion, Illinois.
There, they exchanged information about their convictions on
child pornography charges and discovered that McLaughlin had
provided evidence against all of them.

They then brought suit

in this court against McLaughlin, alleging that his affidavits
violated § 2518(8)(a) of the ECPA.
Under the ECPA, “[e]xcept as provided in section
2511(2)(a)(ii), any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used
in violation of this chapter may in a civil action recover from
the person or entity, other than the United States, which
engaged in that violation such relief as may be appropriate.”1
§ 2520(a).

Section 2518(8)(a) provides that “[t]he contents of

any wire, oral, or electronic communication intercepted by any
means authorized by this chapter shall, if possible, be recorded
on tape or wire or other comparable device . . . [and] shall be
done in such a way as will protect the recording from editing or
other alterations.”

To recover damages, a plaintiff must prove

The plaintiffs do not challenge McLaughlin’s authority to
record their communications under 18 U.S.C. § 2511(2)(c).
1

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by a preponderance of the evidence that the defendant violated a
provision of the ECPA.2

Lewton v. Divingnzzo, 772 F. Supp. 2d

1046, 1058 (D. Nev. 2011).
The plaintiffs allege that McLaughlin violated § 2518(8)(a)
by copying recordings of their internet communications into word
processing documents titled “Supporting Affidavits.”

They

allege that because word processing documents can be edited,
their communications were not protected in violation of
§ 2518(8)(a).

They also allege that by using a word processing

document that included content prepared before their
communications were intercepted McLaughlin’s process shows that
he could have altered the content of their communications.
To state a claim under § 2520(a) and § 2518(8)(a), the
plaintiffs must allege facts that show that it was possible for
McLaughlin to record their communications in a way that would
protect the recording from editing or alteration and that he did
not do so.

The complaint and attached exhibits, however, show

that McLaughlin took “screen captures” of communications and
printed communications and that parts of those recordings were
copied and pasted into his affidavits.

The plaintiffs use the

In their complaint, the plaintiffs mistakenly rely on 18
U.S.C. § 3504(a) to put the burden on McLaughlin.
2

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screen captures and print-outs to contest the content of the
affidavits.
While the plaintiffs challenge the affidavits created by
McLaughlin, they apparently accept the accuracy and validity of
the other recordings made by McLaughlin and do not contend that
those violated § 2518(8)(a).

Therefore, because the plaintiffs

allege that McLaughlin saved their communications through other
means that did not violate § 2518(8)(a), they have not alleged
facts to show that McLaughlin violated the ECPA.

In addition,

even if the copy and paste method were the only means by which
the plaintiffs’ communications were recorded, that would not
necessarily violate § 2518(8)(a).

See Harmon v. United States,

2016 WL 815595, at *7 (N.D. Ohio Mar. 2, 2016).
The plaintiffs focus most of the complaint on their charges
that McLaughlin tampered with their communications and
fabricated evidence against them in the affidavits, relying on
United States v. Williams, 16 F. Supp. 3d 1301 (N.D. Okla.
2014), and United States v. Jackson, 488 F. Supp. 2d 866, 870-71
(D. Neb. 2007).

Because this is a civil case under the ECPA,

not a petition for a writ of habeas corpus or a motion in a
criminal proceeding, those cases provide no support for the
plaintiffs here.

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In addition, as the magistrate judge found, the plaintiffs
have not shown that fabrication or material alterations
occurred.

The plaintiffs provide copies of the screen captures

and print-outs of their communications with McLaughlin and
contrast those to McLaughlin’s pasted copies in the affidavits.
They offer their own analysis of the copy-and-pasted documents,
faulting McLaughlin for minor changes between the screen capture
and printed versions of the communications, which the plaintiffs
credit as authentic, and the affidavits.

The small changes do

not show any material fabrications or alterations, contrary to
the plaintiff’s conclusory accusations.
Further, in Jackson, an expert provided an examination of
the evidence to show that material alterations had occurred.
Here, the plaintiffs’ analysis focuses on minutiae, and the
probative value of their challenges to the communication
evidence, compared to an analysis by an expert, lacks persuasive
power.

See Harmon, 2016 WL 815595.

In any case, the plaintiffs concede that McLaughlin made
other recordings of their communications and do not allege that
those recordings violate § 2518(8)(a).

Indeed, the plaintiffs

rely on the other recordings to challenge McLaughlin’s
affidavits.

Therefore, the plaintiffs fail to allege a claim

that McLaughlin did not record their communications “in such a

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way as will protect the recording from editing or other
alteration.”
D.

§ 2518(8)(a).

Statute of Limitations
A civil action under § 2520 must be brought within “two

years after the date upon which the claimant first has a
reasonable opportunity to discover the violation.”

§ 2520(e).

The plaintiffs filed this suit on February 25, 2016.

Therefore,

their claims are time barred if they had a reasonable
opportunity to discover the alleged violation before February
25, 2014.
The plaintiffs knew from their criminal cases that
McLaughlin had intercepted their online communications and
provided that information, including the affidavits, to the
prosecutors.3

As the magistrate judge reported, each of the

plaintiffs was represented by counsel during the criminal cases.
Although the details about McLaughlin’s techniques in
intercepting their communications apparently were at issue only
in Ismay’s case, none of the plaintiffs provide any reason why

The plaintiffs’ reliance on Holland v. Florida, 560 U.S. 631
(2010), is misplaced, as the Supreme Court there addressed
equitable tolling for purposes of limitations periods imposed by
the Antiterrorism and Effective Death Penalty Act. The
plaintiffs have provided no cognizable grounds for equitable
tolling here.
3

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the details were unavailable to them, except that they had no
legal background and counsel did not raise the issue during
their criminal cases.
The plaintiffs’ incarceration does not toll the limitations
period.

Lacedra v. Donald W. Wyatt Det. Facility, 334 F. Supp.

2d 114, 127 n.7 (D.R.I 2004); accord Fiore v. Dupre, 2011 WL
2748191, at *6 (D.R.I. June 16, 2011).

In addition, the

plaintiffs’ lack of legal training or understanding of the law
does not provide grounds to toll a limitations period.

Holmes

v. Spencer, --- F.3d ---, 2016 WL 2610658, at *3 (1st Cir. May
6, 2016).

While counsel’s conduct during and after a criminal

action may provide extraordinary circumstances to support
equitable tolling for purposes of the limitations period
applicable to habeas corpus petitions, no such rule applies
here.

See Holland v. Florida, 560 U.S. 631 (2010) (discussing

equitable tolling for purposes of the Antiterrorism and
Effective Death Penalty Act and 28 U.S.C. § 2244(d)).
Warner was convicted in 2008, and Rowe and Olsen were
convicted in 2011.

The plaintiffs had a reasonable opportunity

to discover the alleged violation of the ECPA long before the
limitations period expired.

Indeed, their allegations in the

complaint and their filings in their criminal cases show that

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they were aware of the bases for the ECPA claim more than two
years before they filed suit here.4
The plaintiffs also contend that the limitations period
should be tolled because they are actually innocent of the
crimes of conviction.5

The validity of their convictions is not

at issue in this case.

The actual innocence ground for tolling

applies to petitions for a writ of habeas corpus, not to civil
actions under the ECPA where innocence and guilt are not at
issue.

See, e.g., Brown v. Reilly, 2015 WL 4510376, at *2

(D.N.H. July 23, 2015) (citing McQuiggin v. Perkins, 133 S. Ct.
1924, 1935 (2013)).

As a result, even if the plaintiffs had

provided any plausible support for a claim of actual innocence,
which is absent, that would not provide grounds to toll the
limitations period in this case.
Therefore, the plaintiffs’ claims under the ECPA are barred
by the statute of limitations.

According to the complaint in this case, the details of
McLaughlin’s methods were described in Ismay’s case in 2008, and
Olsen further investigated McLaughlin’s methods in 2010. Warner
filed an amended petition for relief under 28 U.S.C. § 2255 on
August 23, 2012, challenging McLaughlin’s interception of his
communications under § 2518(8)(a), based on Ismay, 08-cr-39
(C.D. Cal. 2008). Rowe filed a motion in his criminal case on
June 18, 2013, raising the issue of McLaughlin’s interception of
his communications under § 2518 based on Ismay.
4

Warner also raises a miscarriage of justice ground for
tolling that applies in habeas cases but not here.
5

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Because leave to amend would be futile in this case, the
claims brought by Warner, Rowe, and Olsen are dismissed with
prejudice.

Conclusion
For the foregoing reasons, the report and recommendation
(document no. 37) is accepted as modified by this order.
The report and recommendation issued on June 9, 2016,
(document no. 20) has been vacated.
The motion for default judgment (document no. 6) is
terminated as moot.
Ismay’s motion to withdraw, construed as a notice of
voluntary dismissal, (document no. 50) is granted.

Ismay’s

claim is dismissed without prejudice.
The complaint is dismissed with prejudice as to Warner,
Rowe, and Olsen.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
August 30, 2016

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cc:

John A. Curran, Esq.
J. Randall Ismay, pro se
Kyle Olsen, pro se
Kenneth J. Rowe, pro se
Adelbert H. Warner II, pro se

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