Griggs-Ryan v. Smith

Citation904 F.2d 112
Decision Date07 May 1990
Docket Number90-1004,GRIGGS-RYA,Nos. 89-2204,P,s. 89-2204
PartiesGeraldlaintiff, Appellant, v. Beulah SMITH, Defendant, Appellee. Geraldlaintiff, Appellant, v. Richard CONNELLY, et al., Defendants, Appellees. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Thomas Van Houten, with whom Wood & Van Houten was on brief, for plaintiff, appellant.

John H. O'Neil, Jr. and Smith & Elliott, P.A. on brief, for defendant, appellee Beulah Smith.

John M.R. Paterson, with whom Neal F. Pratt and Bernstein, Shur, Sawyer & Nelson were on brief, for defendants, appellees Richard Connelly and Town of Wells, Maine.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

Reaching out to touch someone, plaintiff-appellant Gerald Griggs-Ryan filed two related civil actions in the United States District Court for the District of Maine. Suing his landlady, Beulah Smith, plaintiff alleged that she unlawfully intercepted and disclosed the contents of a telephone conversation in which he participated. 1 Suing the Town of Wells and Richard Connelly, a detective in the Wells Police Department, plaintiff alleged that Connelly violated his rights by disseminating the contents of the telephone conversation recorded by Smith. He also alleged that the municipality was liable for Connelly's malefaction under principles of respondeat superior.

Eventually all parties moved for summary judgment. The district court granted defendants' motions. See Griggs-Ryan v Connelly, 727 F.Supp. 683 (D.Me.1989). 2 We affirm.


As necessitated by the posture of the appeals, we recount the properly documented facts in the mien most favorable to the summary judgment loser. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990); see also Fed.R.Civ.P. 56(c).

Plaintiff was a tenant at a campground which Smith operated in Wells. The individual units did not have telephones, but lodgers were allowed to use the landlady's telephone. During the summer of 1987, Smith was plagued by obscene calls. On the police department's advice, she began to record incoming calls through her answering machine. Because she suspected that plaintiff's friend, Paul Jackson, was responsible for the offensive overtures, Smith informed plaintiff on a number of occasions that all calls to her home were being recorded. She hoped, of course, that plaintiff would relay the message to Jackson.

On September 14, 1987, Smith answered the telephone in her bedroom. The caller identified himself as "Richard Kierstead" and asked to speak with plaintiff. Smith held the line open to maintain the connection while her daughter went to fetch plaintiff. When Griggs-Ryan picked up the office extension, Smith started to cradle her instrument. Overhearing the caller say, "Hi, it's Paul, she thinks its Kierstead," and believing the voice to be Paul Jackson's, Smith changed her mind. She did not hang up but instead listened to and recorded the ensuing discussion.

As a result of the eavesdropping, Smith came to suspect that the overheard conversation concerned a drug transaction. She immediately contacted the authorities. At police headquarters, she played the tape for defendant Connelly. Sharing Smith's suspicions, the detective revealed the conversation's contents to the district attorney and to a local magistrate (known colloquially as a "Complaint Justice"). The magistrate issued a warrant to search plaintiff's abode and the Wells police executed it, seizing marijuana. Griggs-Ryan was arrested and charged with trafficking.

A suppression hearing was held in the state superior court. Smith testified about what she told Griggs-Ryan concerning her recording practice. The judge found that plaintiff was "unaware" that Smith was listening to, or recording, the September 14 conversation, and ruled that Smith's interception of the conversation was therefore inadmissible under Maine law. On September 28, 1989, the judge suppressed the fruits of the search.

In the meantime, plaintiff had begun the instant suits in federal court. After discovery was completed, cross motions were filed under Fed.R.Civ.P. 56. For their part, defendants argued that plaintiff, by electing to talk to Jackson after Smith's warning that all incoming calls were being recorded, effectively acquiesced in the interception. 3

The district court concluded that the landlady's actions were not proscribed by federal law because "Smith informed Plaintiff on more than one occasion that she was recording all incoming calls" and that there was "no evidence that Smith qualified her statements to Plaintiff" on the matter. 727 F.Supp. at 685. Thus, the district court held that "Plaintiff's receiving of a telephone call inside of Smith's home, when considered in light of the warning he received, manifests implied consent" sufficient to trigger the prior consent exception to Title III. 4 Id. at 687.


Summary judgment is permissible when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Our review of such a disposition is plenary. See Garside, 895 F.2d at 48; Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513 (1st Cir.1989). Like the district court, we must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor. See Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989); Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989).

We recently delineated the yardstick by which a summary judgment thrust must be measured:

The movant must put the ball in play, averring "an absence of evidence to support the nonmoving party's case." The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both "genuine" and "material." A "genuine" issue is one "that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Put another way, a "genuine" issue exists if there is "sufficient evidence supporting the claimed factual dispute" to require a choice between "the parties' differing versions of the truth at trial." A "material" issue is one that "affect[s] the outcome of the suit," that is, an issue which, perforce, "need[s] to be resolved before the related legal issues can be decided."....

On issues where the nonmovants bear the burden of proof ..., they must reliably demonstrate that specific facts sufficient to create an authentic dispute exist.

Garside, 895 F.2d at 48 (citing and quoting, inter alia, Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), and Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; other citations omitted). The happenstance that all parties seek summary judgment neither alters the yardstick nor empowers the trial court to resolve authentic disputes anent material facts. To the contrary, the court must evaluate each motion separately, being careful to draw inferences against each movant in turn. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987); Schwabenbauer v. Board of Educ., 667 F.2d 305, 313-14 (2d Cir.1981).

A genuine issue of material fact does not spring into being simply because a litigant claims that one exists. Neither wishful thinking nor "mere promise[s] to produce admissible evidence at trial," Garside, 895 F.2d at 49, nor conclusory responses unsupported by evidence, Ayer v. United States, 902 F.2d 1038, 1044-45 (1st Cir.1990), will serve to defeat a properly focused Rule 56 motion. After all, one who opposes a Rule 56 motion "may not rest upon her laurels (or her pleadings)." Mack, 871 F.2d at 181. Rather, the opponent must pull the laboring oar and "set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). This requires hard evidence of a material factual dispute; the opposition cannot be "conjectural or problematic [but] must have substance." Mack, 871 F.2d at 181. Evidence which is "merely colorable, or is not significantly probative" will not preclude summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citation omitted).

These rules are not suspended in cases where conclusions must be drawn from agreed or uncontradicted facts. In such instances, "[e]ven ... where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). The outcome depends upon the cogency of the conclusion which the movant asks the court to draw. When, as in the case before us, only a single conclusion is plausibly inferable from the uncontradicted facts, Rule 56 can properly be invoked. See, e.g., Oliver v. Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir.1988); Binkley Co. v. Eastern Tank, Inc., 831 F.2d 333, 337 (1st Cir.1987).


Plaintiff, as if bent on out-heroding Herod, see generally W. Shakespeare, Hamlet, Act III, sc. ii (1601), harangues stridently that brevis disposition of his complaints contravened both the general purposes of Title III and the specific rationale behind the statute's consent exception. Turning up the volume, however, cannot mask the paucity of content contained in plaintiff's argumentation.

A. The Law.

Although plaintiff repeatedly declaims that wire communications are "protected absolutely from illegal interception," that rallying cry--like most sloganeering--overstates the proposition. Title III was intended to prohibit all interceptions "except those specifically provided for in the Act." United States v. Giordano, 416...

To continue reading

Request your trial
900 cases
  • In re DiVittorio
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • May 28, 2010
    ...Trading Co., 200 F.3d at 2 (quoting Morris v. Gov't Dev't Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). 116 Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). 117 Nicolo v. Philip Morris, Inc., ......
  • Colon-Perez v. Department of Health of Puerto Rico
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 11, 2009
    ...hospitable to the party opposing summary judgment, indulging in all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). The court may safely ignore, however, "conclusory allegations, improbable inferences, and unsupported speculation." Medin......
  • United States v. Kesari
    • United States
    • U.S. District Court — Southern District of West Virginia
    • August 25, 2021 inferred ‘from surrounding circumstances indicating that the [party] knowingly agreed to the surveillance.’ " Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir. 1990) (alteration in original) (quoting Amen, 831 F.2d at 378 ); see also Berry v. Funk, 146 F.3d 1003, 1011 (D.C. Cir. 1998)......
  • IN RE HERMOSILLA, Bankruptcy No. 05-11048-WCH.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • May 26, 2010
    ...Trading Co., 200 F.3d at 2 (quoting Morris v. Gov't Dev't Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994)). 22 Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). 23 Nicolo v. Philip Morris, Inc., 201......
  • Request a trial to view additional results
3 books & journal articles
  • Half Baked: The Need for Clarity on the Party Exemption to the Wiretap Act for Private Actors Using Tracking Cookies.
    • United States
    • Suffolk University Law Review Vol. 56 No. 1, January 2023
    • January 1, 2023
    ...courts review the dimensions of the consent to determine whether the interception has exceeded those boundaries. See Griggs-Ryan v. Smith, 904 F.2d 112, 119 (1st Cir. 1990) (explaining parameter of consent circumscribed depends on specific facts). The scope of consent is focused on whether ......
  • E-mail monitoring in the workplace: the good, the bad and the ugly.
    • United States
    • Defense Counsel Journal Vol. 67 No. 1, January 2000
    • January 1, 2000
    ...(22.) Ciapciak & Matuszak, supra note 16, at 17. See United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987); Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. (23.) Larry O. Natt Gantt II, An Affront to Human Dignity: Electronic Mail Monitoring in the Private Sector Workplace, 8 HARV. J. LA......
  • The private workplace and the proposed "Notice of Electronic Monitoring Act": Is "notice" enough?
    • United States
    • Federal Communications Law Journal Vol. 54 No. 1, December 2001
    • December 1, 2001
    ...or tortious act.... Id. (53.) 980 F.2d 1153 (8th Cir. 1992). (54.) Id. at 1155-56. (55.) Id. at 1157 (citing Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990), which held that recorded conversations were exempted under the consent provision because the plaintiff told the defendant that she......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT