Campiti v. Walonis, Civ. A. No. 76-2968-C.

• Decision Date: 30 June 1978
• Docket Number: Civ. A. No. 76-2968-C.
• Parties: Francesco G. CAMPITI and Joseph Pioggia, Plaintiffs, v. Michael A. WALONIS et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

453 F. Supp. 819

Francesco G. CAMPITI and Joseph Pioggia, Plaintiffs, v. Michael A. WALONIS et al., Defendants.

Civ. A. No. 76-2968-C.

United States District Court, D. Massachusetts.

June 30, 1978.

Max D. Stern, Burnham, Stern & Shapiro, Boston, Mass., for plaintiffs.

Lee Carl Bromberg, Sp. Asst. Atty. Gen., Dept. of Correction, Boston, Mass., for defendants.

OPINION

CAFFREY, Chief Judge.

This is a civil action alleging violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C.A. §§ 2510-2520, brought pursuant to 42 U.S.C.A. § 1983. Jurisdiction is invoked under 28 U.S.C.A. §§ 1331 and 1343. Pendent jurisdiction is also alleged over a claim brought pursuant to Mass.Gen.Laws Ann. ch. 272, § 99(Q).

The plaintiffs in this action, Francesco Campiti and Joseph Pioggia, essentially complain about defendants' monitoring of a September 19, 1975 phone call. On that date, they were both inmates of the Massachusetts correctional system. They name as defendants Frank Hall, Massachusetts Commissioner of Corrections; Michael Walonis, an investigator for the Security Management Team (SMT) of the Department of Corrections; Frank Gunther, Superintendent of the Massachusetts Correctional Institution, Walpole (MCI Walpole); and Dennis Brown, Deputy Superintendent of MCI Walpole.

Plaintiffs' complaint, seeking both equitable and monetary relief, is in three counts. Count One charges interception of a wire communication without plaintiff's consent in violation of 18 U.S.C.A. § 2511(1)(a), which prohibits any person from "willfully intercept(ing), endeavor(ing) to intercept, or procur(ing) any other person to intercept or endeavor to intercept, any wire or oral communication"; Count Two alleges violation of plaintiffs' Fourth Amendment rights; and Count Three charges violation of the Massachusetts wiretap statute, supra. The Fourth Amendment claim which is the basis of Count Two was dropped prior to trial. Defendants have raised the affirmative defenses of (1) qualified immunity; and (2) certain federal and state statutory exemptions.

During the one-day non-jury trial held on March 7, 1978, the parties stipulated to the following relevant facts.

On September 13, 1975, plaintiffs were both inmates of the Franklin County House of Correction. Campiti was then serving a sentence to a state institution but had been transferred to the County House of Correction. On that date, the first of a series of articles appeared in the Springfield Union alleging that the plaintiffs had been receiving "improper" and "favored" treatment at the institution, which allegations resulted in the Department of Corrections conducting an investigation into those charges. A second investigation was conducted by the District Attorney of Franklin County. On February 6, 1976, both Campiti and Pioggia were indicted by a Franklin County Grand Jury for an offense allegedly committed during their incarceration in the Franklin County House of Correction. On November 16, 1976, Campiti was acquitted; thereafter the charge against Pioggia was dismissed.

It was further stipulated that there was no warrant or court order pursuant to which the September 19, 1975 telephone conversation at issue in this case was monitored. The disclosures made by defendant Walonis regarding that call were made pursuant to general authority granted to him by Hall to take discretionary action as an SMT investigator. While not all disclosures regarding the monitored call were specifically authorized by Hall, he did specifically authorize disclosure of Walonis' typewritten account of the conversation to the Assistant Attorney General of the Commonwealth and to the Franklin County District Attorney. Hall also authorized the oral disclosure made by defendant Walonis to the Franklin County District Attorney and to a state police officer named George Powers.

On the basis of the evidence adduced at trial, this Court finds the following additional facts:

Campiti had been convicted in 1974 of armed robbery and sentenced to a term of ten to fifteen years at MCI Walpole. He had been transferred from MCI Walpole to the Franklin County House of Correction. Pioggia had been convicted of possession of an explosive device, received a state sentence of 12 months to the County House of Correction and a concurrent sentence of 18 months to the federal penitentiary.

The Springfield Union articles, referred to above, alleged in substance that Sheriff Martin conducted the administration of the Franklin County House of Correction in an improper manner, specifically that he showed favoritism to certain inmates, including Campiti, by affording them such privileges as work-release and furloughs. Because of these allegations, defendant Hall ordered Campiti transferred to MCI Walpole and also ordered an SMT investigation. After Campiti's transfer to MCI Walpole, he was placed in a maximum security unit. At some point thereafter, Campiti requested permission to call Sheriff Martin.

On September 19, 1975, Walonis travelled to MCI Walpole to conduct interviews in connection with another SMT investigation. After arriving at Walpole, he met with Gunther and Brown in Gunther's office. Since Gunther was aware of the ongoing SMT investigation into allegations concerning Campiti and Martin, he brought to Walonis' attention the fact that Campiti had requested permission to call Martin. Approval and monitoring of the call was discussed by the three defendants. I find that the three defendants present at that meeting agreed that permission for Campiti to make the call should be given and that Walonis should monitor it. Walonis then advised the correction officer who was to escort Campiti to the phone, Officer James Lambirth, that he would be monitoring the call at the switchboard. Walonis then went to a section of the prison known as the Outer Control Section where he monitored the call on a telephone wired directly into the main switchboard.

After Lambirth told Campiti his request to call Martin had been approved, Lambirth escorted Campiti to Deputy Superintendent Brown's office. Lambirth then placed the call through lines operated by the New England Telephone Company, a subsidiary of the Bell Telephone System and a common carrier engaged in providing and operating facilities for the transmission of interstate and foreign communications. All MCI Walpole internal telephone equipment, including the switchboard, was owned by the New England Telephone Company.

After Lambirth placed the call, he identified the receiving party as Martin, identified himself by name and as an MCI Walpole officer, and ascertained that Martin would accept a collect call from Campiti. Lambirth then relinquished the phone to Campiti and stepped to an outer office, where he could hear the sound of Campiti's voice but could not make out what he was saying. Although it was normal procedure for an escorting officer to remain within earshot during a call made by a maximum security inmate on institution equipment, Lambirth did not do so in this case because he knew that the call was being monitored by Walonis.

Walonis listened to the call while sitting next to the switchboard operator on a telephone wired directly into the switchboard. He made handwritten notes during the call, which all parties concede lasted approximately five minutes.

After Martin and Campiti spoke for one-and-a-half to two minutes, Campiti asked to speak to Pioggia. Martin handed the phone to Pioggia, who was standing next to him. Campiti then spoke to Pioggia for about a minute, which he was not authorized to do. Pioggia next returned the phone to Martin, who spoke to Campiti for another minute or so before hanging up.

I find that neither Campiti, Pioggia, or Martin consented to the monitoring nor was aware of it. No employee of the Department of Correction informed Campiti prior to the call that the telephone call would be monitored. The first time the plaintiffs learned of the monitoring of the call was during discovery proceedings in their Franklin County case. No institutional regulation then in effect at MCI Walpole informed inmates of the possibility of their phone calls being monitored. No evidence was adduced to support a finding that the monitoring was reasonably related to maintaining internal security at MCI Walpole, and I find it was not so related.

Shortly after the conclusion of the call, Martin telephoned defendant Hall with the intention of asking that Campiti be returned to Greenfield. Commissioner Hall had been advised by Walonis to expect the call. He did not take Martin's call that day.

During the time that Walonis had been a member of the Security Management Team, he had never previously monitored a telephone conversation. He had, however, monitored calls during earlier employment as a correction officer/switchboard operator at MCI Norfolk.

Subsequent to the monitoring, Walonis prepared a one-page report on the call, which was included as an exhibit in the final SMT report on the investigation. Walonis also telephoned Hall's office on the day of the call and described the substance of the monitored conversation either to Commissioner Hall or to Deputy Commissioner David Haley. On that same day Walonis orally informed Gunther, Brown and James Hoard, another SMT investigator, of the substance of the call. On or about September 22, 1975, Walonis described the substance of the monitored call to Robert Miranda, another SMT investigator working on the Franklin County investigation. On or about September 29, 1975, Walonis described the substance of the intercepted conversation to District Attorney John M. Callahan and State Police Lt. Detective George Powers.

I find that inmate phone calls made at MCI Walpole on institution phones going through the switchboard had been monitored prior to trial, but only in the sense that the correction officer escorting the inmate to the phone placed the call and remained...