Warner et al v. McLaughlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Adelbert H. Warner, II,
Kenneth J. Rowe,
Kyle Olsen, and
J. Randall Ismay
v. 	Civil No. 16-cv-034-JD
Det. James McLaughlin
REPORT AND RECOMMENDATION
Before the court is plaintiffs’ complaint (doc. no. 1) in
this matter, alleging violations of the Electronic
Communications Privacy Act, 18 U.S.C. § 2510, et seq. (“ECPA”),
and seeking relief under 18 U.S.C. § 2520. 	Because plaintiffs
are prisoners proceeding pro se,1 the matter is before the court
for preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).2 	Also before the court for consideration is
1The initial complaint in this matter (doc. no. 1), named
four plaintiffs, Warner, Rowe, Olsen, and Ismay, but only Warner
signed the complaint. 	Plaintiffs Rowe, Olsen, and Ismay each
subsequently signed and filed a document entitled
“Certification” (doc. nos. 4, 5, and 21), that the court
construes as addenda to the complaint to add their signatures,
signifying that they are representing themselves in this action.
2The court previously issued a Report and Recommendation
(doc. no. 20) which has been vacated and replaced with the
instant Report and Recommendation. 	While the previous Report
and Recommendation was pending, defendants Olsen, Rowe, and
Warner filed objections (doc nos. 22-24) thereto. 	Those
objections, along with any further objections properly filed by
plaintiffs, will be forwarded to the district judge considering
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plaintiffs’ motion for default judgment (doc. no. 6),
defendant’s objection thereto (doc. no. 9), and plaintiffs’
response to the objection (doc. no. 11).
Background
Plaintiffs are federal prison inmates serving lengthy
prison sentences for offenses related to the distribution and/or
production of child pornography. 	See, e.g., United States v.
Warner, No. 1:08-cr-063-PLM (W.D. Mich.); United States v. Rowe,
No. 5:10-cr-019-KKC-REW (E.D. Ky.); United States v. Olsen, No.
1:10-cr-374 (N.D. Ill.); United States v. Ismay, No. 8:08-cr-39-
AG (C.D. Cal.). 	Each of their convictions arose out of
investigations conducted, at least in part, by Detective James
McLaughlin of the Keene (New Hampshire) Police Department.
Plaintiffs engaged in online conversations with McLaughlin, who
was posing as an adolescent boy, by way of instant messaging,
private chats, and/or e-mail. 	The online communication between
McLaughlin and the plaintiffs included each plaintiff sending
McLaughlin digital images constituting child pornography. 	Each
the instant Report and Recommendation. 	Additionally, to the
extent those objections contained information that could be
construed as addenda to the complaint, the undersigned
Magistrate Judge has considered them and found that the contents
of the objections do not alter her recommendation in this
matter.
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case resulted in criminal convictions.
Discussion
I. 	Preliminary Review
A. 	Standard
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). 	Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading, and inferences reasonably drawn therefrom, taken
as true, state a facially plausible claim to relief. 	Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B. 	ECPA Claims
The ECPA protects “electronic communications . . . against
unauthorized interceptions” by private persons, and government
and law enforcement officials. 	Brown v. Waddell, 50 F.3d 285,
289 (4th Cir. 1995) (citing 18 U.S.C. § 2511(1)(a)).3 	The ECPA
authorizes private lawsuits for civil damages where plaintiff’s
3The ECPA defines “electronic communication” as “any
transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by a
wire, radio, electromagnetic, photoelectronic or photooptical
system that affects interstate or foreign commerce.” 	18 U.S.C.
§ 2510(12).
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“electronic communication is intercepted, disclosed, or
intentionally used in violation of” the EPCA. 	18 U.S.C. § 2520.
Relevant to this action, § 2511(2)(c) of the ECPA allows “a
person acting under color of law to intercept a wire, oral, or
electronic communication, where such person is a party to the
communication.” 	Plaintiffs here claim that the manner in which
McLaughlin recorded the electronic communications that formed
the basis of the plaintiffs’ criminal charges violated the ECPA,
and that they are thus entitled to relief. 	Plaintiffs
specifically assert that Det. McLaughlin’s actions in each of
their cases violated 18 U.S.C. § 2518(8)(a), which requires
that, where possible, ECPA-authorized electronic communications
be recorded in a manner that “protect[s] the recording from
editing or other alterations.”4 	Id. 	Plaintiffs state that
McLaughlin recorded their electronic communications by taking
“screen shots” of their electronically written conversations, or
saving those conversations into text files. 	Plaintiffs allege
4Section 2518(8)(a) states, in pertinent part:
The 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. 	The recording of
the contents of any wire, oral, or electronic
communication under this subsection shall be done in
such a way as will protect the recording from editing
or other alterations. . . .
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that, in preparing documents to be used in their criminal cases,
McLaughlin used a cut-and-paste method to place recorded
excerpts of his electronic communications with the plaintiffs
into documents McLaughlin prepared for use in each of the
plaintiffs’ cases. 	Plaintiffs assert that during the cut-and-
paste process, McLaughlin was able to make textual changes to
copies of the communications, and thus, the communications were
recorded in a medium that did not protect those recordings from
alterations or editing, in violation of § 2518(8)(a).
Plaintiffs further claim that slight textual changes between
documents utilized in the plaintiffs’ cases and the original
recordings of the electronic communications between McLaughlin
and each plaintiff, demonstrate that McLaughlin fabricated
evidence in the plaintiffs’ cases.
Assuming, without deciding, that protective recording was
possible in the instances plaintiffs describe, the allegations
in the complaint, taken as true, do not demonstrate that the
initial recording of the excerpted conversations was not
protective of the integrity of the original recording, or
otherwise failed to satisfy the requirements of § 2518(8)(a).5
5At least one court has found that § 2518(8)(a) does not
apply to recordings of conversations in which one party, acting
under color of law, consents to the recording, as that
subsection applies to interceptions made “by any means
authorized by this chapter,” and that, while § 2511(2)(c)
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As plaintiffs have failed to assert facts to support a claim
that defendant violated § 2518(8)(a), they have failed to assert
a claim upon which relief may be granted under § 2520, and the
district judge should dismiss the complaint.
C. 	Statute of Limitations
There is another basis upon which the action should be
dismissed. 	Lawsuits filed under 18 U.S.C. § 2520 must be
brought within two years “after the date upon which the claimant
first has a reasonable opportunity to discover the violation.”
Id. at § 2520(e). 	Plaintiffs assert that they did not learn of
the evidence in other cases like theirs prior to the expiration
of the limitations period in this matter, and thus could not
have filed this action within that period.
Each plaintiff was represented by counsel in his criminal
case. 	At the time of each plaintiff’s criminal prosecution,
information as to how Det. McLaughlin had collected and stored
evidence against that plaintiff was available to him, giving
that plaintiff, and his attorney, the opportunity to investigate
and discover any ECPA violation that may have occurred in that
provides that consensual recordings are not “unlawful” under the
ECPA, that statutory language does not necessarily require a
finding that such communications are “authorized by” the ECPA.
See United States v. Vancier, 466 F. Supp. 910, 910 (S.D.N.Y.
1979). 	As the instant complaint is otherwise subject to
dismissal, this court need not take a position on that issue.
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case. 	The plaintiffs did not need to know how similar evidence
in any other case had been collected or stored by Det.
McLaughlin for each plaintiff to have a reasonable opportunity
to discover a violation of the ECPA. 	Judgment in Warner’s
criminal case was entered on August 20, 2008. 	See Warner, No.
1:08-cr-063-PLM (W.D. Mich.), ECF No. 36. 	Judgment in Rowe’s
criminal case was entered on February 11, 2011. 	See Rowe, No.
5:10-cr-019-KKC-REW (E.D. Ky.), ECF No. 46. 	Judgment in Olsen’s
criminal case was entered on January 27, 2011. 	See Olsen, No.
1:10-cr-374 (N.D. Ill.), ECF No. 29. 	Judgment in Ismay’s
criminal case was entered on July 26, 2010. 	See Ismay, No.
8:08-cr-039-AG (C.D. Cal.), ECF No. 109. 	This action was not
filed until January 27, 2016. 	Each plaintiff, therefore, had a
minimum of almost five years, prior to the filing of this
action, during which he could have filed an EPCA claim. 	Nothing
in the record suggests that any plaintiff lacked a reasonable
opportunity to file this case within two years of his
conviction. 	Even crediting as true plaintiffs’ assertion that
the claims in this action are bolstered by evidence of
McLaughlin’s actions in one another’s criminal cases, such
evidence did not provide any of the plaintiffs here with his
first “reasonable opportunity to discover the violation,” 18
U.S.C. § 2520(e), that forms the basis of this action.
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Plaintiffs argue that compliance with the statute of
limitations should be excused in this case, as McLaughlin’s
alleged fabrication of evidence means that the plaintiffs are
actually innocent of the charges against them. 	Plaintiffs have
not demonstrated, however, sufficient evidence of factual
innocence of the offenses of which they were convicted to toll
the limitations period, assuming, without deciding, that
equitable tolling could be available on that ground.
Accordingly, the district judge should find that this action is
untimely filed, and should dismiss the complaint.
III. Motion for Default Judgment (Doc. No. 6)
Plaintiffs filed a motion for default judgment (doc. no.
6). 	Defendant objected (doc. no. 9). 	In a response (doc. no.
11) to that objection, plaintiffs concede, correctly, that
default judgment should not enter at this time. 	Accordingly,
the district judge should deny the motion for default judgment.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety for failure to state a
claim, and deny the motion for default judgment (doc. no. 6).
Any objections to this Report and Recommendation must be filed
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within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 12, 2016
cc: 	Adelbert H. Warner, II, pro se
Kenneth J. Rowe, pro se
Kyle Olsen, pro se
J. Randall Ismay, pro se
John A. Curran, Esq.
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