Gilday v. Dubois

Decision Date05 June 1997
Docket NumberNo. 96-1831,96-1831
Citation124 F.3d 277
PartiesWilliam Morrill GILDAY, Jr., Plaintiff, Appellant, v. Larry DUBOIS, ET AL., Defendants, Appellees. First Circuit. Heard
CourtU.S. Court of Appeals — First Circuit

Mark M. Owen, with whom Edward S. Rooney, Jr., Andrea C. Dow and Lyne, Woodworth & Evarts LLP, Boston, MA, were on brief, for appellant.

Philip W. Silva, Bridgewater, MA, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief, for appellees Dubois and Matesanz.

Thomas R. Teehan, Boston, MA, for appellee New England Telephone and Telegraph Company.

Susan E. Stenger, with whom Lawrence G. Green and Perkins, Smith & Cohen, LLP, Boston, MA, were on brief, for appellee AT & T Corp.

Before CYR, Circuit Judge, STEARNS, * U.S. District Judge, and GERTNER, ** U.S. District Judge.

CYR, Circuit Judge.

Plaintiff William Morrill Gilday, Jr. challenges a summary judgment ruling dismissing his civil rights claims and related claims for civil contempt against appellees Larry Dubois and James Matesanz, of the Massachusetts Department of Correction ("DOC"), and appellees American Telephone and Telegraph Corporation ("AT & T") and New England Telephone and Telegraph Company ("NET"). As Gilday failed to generate a trialworthy issue with respect to any claim, we affirm the district court judgment.


After killing a Boston police officer during a 1970 bank robbery in Brighton, Massachusetts, Gilday was convicted of first degree murder and armed robbery, for which he is now serving concurrent life sentences at the Bay State Correctional Center in Norfolk, Massachusetts. In 1974, Gilday commenced a civil rights action in federal district court against various FBI and DOC officials, see Gilday v. Webster, No. 74-4169-C, alleging interference with attorney-client communications in violation of the Sixth and Fourteenth Amendments, and violations of the federal and state wiretap statutes, 18 U.S.C. §§ 2510 et seq., and Mass. Gen. L. ch. 272, §§ 99 et seq. 2 Gilday alleged that federal and state officials were opening his prison mail and intercepting his telephone communications in a coordinated effort to gather information regarding others involved in the Brighton bank robbery.

Approximately ten years later, Gilday and four DOC officials entered into a stipulation ("settlement stipulation") which led to the following permanent injunction against the DOC and the defendant DOC officials on September 12, 1984 ("the Gilday injunction"): 3


Having reviewed and approved the Settlement Stipulation dated September 10, 1984, and after hearing, it is hereby ORDERED, DECREED AND ADJUDGED as follows:

1. All officers, agents, servants, employees and attorneys of the Department of Correction are enjoined permanently, under both 18 U.S.C. § 2510 et seq. and M.G.L. c. 272, § 99 et seq., from intercepting, endeavoring to intercept, or procuring any other person to intercept or endeavor to intercept, any wire communication by or to plaintiff William Gilday without a specific court order or legislative authorization to do so, except as specifically permitted by these statutes, taken together, as they have been amended or may be amended and as they have been construed or may be construed in reported decisions that are binding in this Court or in the state courts of Massachusetts.

2. [mail restrictions]

3. This Permanent Injunction, entered pursuant to the settlement stipulation dated September 10, 1984, shall operate prospectively only; it shall not prejudice the rights of nonsettling defendants or, of its own force, affect the rights of inmates other than William Gilday.

(Emphasis added.)

Over the next ten years, however, developments in electronic technology, as well as inmate ingenuity, prompted increased prison-telephone abuses, 4 such as acquiring merchandise by fraud, promoting drug violations, soliciting murder, harassing crime victims, witnesses, and public officials, facilitating escape plots, violating court restraining orders, and threatening domestic violence. The DOC responded in 1993 by inviting telephone-system vendors to furnish, install, and maintain an advanced prison telephone system designed to deter inmate abuses by monitoring, recording, and "detailing" their calls. 5

Ultimately, NET contracted to produce, install, and maintain an inmate telephone system for all DOC facilities, which became known as the Massachusetts Inmate Telephone System ("MITS"), to supply both local and long distance service and remit to the DOC forty percent of the gross revenues from inmate calls. NET in turn subcontracted with AT & T to furnish long distance MITS service. A third company, Telematic Corporation, contracted with AT & T and NET to provide the electronic equipment and software needed to provision the system.

On April 8, 1994, the DOC promulgated new inmate telephone regulations, see 103 C.M.R. §§ 482.00 et seq. ("MITS Regulations"), "establish[ing] Department procedures regarding access to, use of and the monitoring and/or recording of inmate telephones." Id. § 482.01. Under the MITS Regulations, a personal identification number ("PIN") is randomly assigned to each inmate. The inmate must dial the assigned PIN immediately before dialing the telephone number, whereupon an automatic operator completes the connection. No more than fifteen designated parties are accessible with any PIN: ten friends and family members and five attorneys. See id. § 482.07(3)(c); Bender Aff. p 8. The right to call designated attorneys may not be suspended or curtailed except during an institutional emergency, see id. §§ 482.08-482.09, whereas the right to call other designated parties is subject to disciplinary restriction, see id. §§ 482.07(3)(h), 482.09. In addition, all inmates are allowed to call three prison legal-service organizations.

Stickers on all MITS telephones alert inmates to the monitoring/recording regime. All inmate calls, except preauthorized attorney calls and legal-service organization calls, are automatically recorded. Certain "detailing" information is recorded on all calls either attempted or completed. Finally, all except attorney and legal-service organization calls may be subjected to concurrent monitoring (i.e., listened in on) by authorized DOC personnel, either at random or for investigative purposes. See id. § 482.07(3)(d).

In order to obtain an individual PIN, the inmate must complete and sign a "Number Request Form," designating the attorney and nonattorney telephone numbers which may be called. The form advises inmates that their "acceptance and use of a PIN and use of inmate telephones shall be deemed as consent to the conditions and restrictions placed upon inmate telephone calls, including call monitoring, recording, and call detail." All inmate calls must be placed "collect." Id. § 482.07(3)(a). Each call begins with a recorded message--audible by both parties--that the call has been placed "collect" by a DOC inmate and is subject to recordation and "detailing." See id. § 482.07(3)(g); Kennedy Aff. p 10. Both parties hear the entire message, but there can be no communication until the collect call has been accepted by the person called. See 103 C.M.R. § 482.07(3)(f); Bender Aff. p 11.

Gilday declined to submit a PIN request form, on the ground that the MITS contravenes the federal and state wiretap statutes and therefore violates the Gilday injunction. 6 At about the same time, Gilday mailed AT & T and NET copies of the Gilday injunction entered September 12, 1984, see supra p. 280, advising that their provision of MITS services would violate the injunction.

Shortly thereafter Gilday petitioned the federal district court for a contempt citation against AT & T, NET, and various DOC officials, claiming that the defendants were "endeavoring to intercept" his telephone communications. Although neither AT & T nor NET was privy to the Gilday injunction, Gilday asserted that both received actual notice by mail, supra pp. 281-82, and therefore knowingly aided and abetted the alleged violations by the DOC defendants. Finally, Gilday alleged, the defendants were depriving him of his "federal right to be free of any interception of his wire communications," as well as his Sixth Amendment right to counsel and his Fourteenth Amendment right of access to the courts, by restricting consultation with counsel regarding six pending judicial proceedings.

The district court entered summary judgment for the defendants, on the ground that the Gilday injunction bans neither monitoring nor recording, but only "interceptions." It noted that no secretive, nonconsensual monitoring or recording--hence no "interception"--had occurred under either wiretap statute, since all recording and monitoring is well advertised as required by the MITS Regulations. See supra p. 281. The district court reasoned that inmates render the MITS monitoring/recording regime consensual by executing the request form and utilizing the MITS. And since it found the term "interception" ambiguous at best, the district court determined to resolve any interpretive doubts favorably to the defendants. Finally, it dismissed the Gilday claims relating to call "detailing," on the ground that Langton v. Hogan, 71 F.3d 930 (1st Cir.1995), had already endorsed the MITS practice in this regard. Accordingly, it concluded that the attendant recording and monitoring did not constitute an "interception" under either the federal or state wiretap statute, thus did not contravene the Gilday injunction. 7

Thereafter, the district court dismissed the section 1983 claims as well, on the ground that Gilday retained all mail privileges, access to a prison law library, the right to meet with counsel and, under the MITS regulations, the right to conduct unmonitored telephone communications with five attorneys and three legal-service organizations.

A. Standard of Review


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