Lanier v. Bryant
| Decision Date | 17 June 2003 |
| Docket Number | No. 00-6408.,00-6408. |
| Citation | 332 F.3d 999 |
| Parties | David W. LANIER, Plaintiff-Appellant, v. Ed BRYANT, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David W. Lanier (briefed), Lompoc, CA, pro se.
Sidney P. Alexander (briefed), Assistant United States Attorney, Memphis, TN, Mary M. Bers (briefed), Office of the Attorney General, Senior Counsel, Civil Rights and Claims Division, Nashville, TN, William N. Bates (briefed), James Russell Farrarr (briefed), Farrar & Bates, Nashwille, TN, Joseph S. Ozment (briefed), Wampler, Pierce, Califf & Siegel, Memphis, TN, for Appellees.
Before BATCHELDER and MOORE, Circuit Judges; FORESTER, Chief District Judge.*
David W. Lanier, a federal prisoner proceeding pro se, appeals the district court order granting summary judgment to the defendants in an action brought pursuant to the Federal Wiretap Act, 18 U.S.C. § 2510, et seq.; 42 U.S.C. §§ 1983 and 1985; and the doctrine announced in Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). For the following reasons, we AFFIRM.
Lanier brought this suit against former United States Attorney Ed Bryant, United States Attorney Veronica Coleman, Assistant United States Attorneys Steve Parker and Amy Spain (now deceased), Department of Justice Attorney Albert Moskowitz, Federal Bureau of Investigation ("FBI") Special Agent Bill Castleberry, Tennessee Bureau of Investigation ("TBI") Agent Steve Champine, the State of Tennessee, the TBI, the City of Dyersburg, Tennessee, the Mayor and Board of Aldermen of Dyersburg, the United States Department of Justice, the FBI, Bobby Williamson, Mark Grant, Joey McDowell (now deceased), Don Newell, Stan Cavness, Rob Hammond, Judy Forsythe, Fay Warner, Marcia Warner Van Sandt, and other unknown persons. Lanier sued these defendants in their individual and official capacities, and he sought monetary and injunctive relief.
Lanier, a former chancery court judge in Dyersburg, Tennessee, was convicted of violating 18 U.S.C. § 242 by sexually assaulting women in his chambers in 1992, and sentenced to twenty-five years of imprisonment. He appealed the conviction, but ultimately had his appeal dismissed when he absconded to Mexico and failed to surrender to federal authorities. See United States v. Lanier, 123 F.3d 945, 946 (6th Cir.1997). Lanier filed his original complaint in May of 1994, alleging that the defendants violated the Federal Wiretap Act by illegally intercepting telephone conversations between himself and other individuals, and then using the recordings of these conversations to prosecute him. After a prolonged procedural history, the district court dismissed most of Lanier's claims. The case proceeded only on Lanier's allegations under the Federal Wiretap Act against Bryant, Parker, Moskowitz, Castleberry, Newell, Cavness, Grant, Williamson, Warner, Van Sandt and Champine. In December of 1999, these remaining defendants filed motions for summary judgment or to dismiss for failure to state a claim. By order entered on September 29, 2000, the district court granted summary judgment to the defendants and dismissed the case. In reaching this decision, the district court held that the federal prosecutors were immune from suit and that the Federal Wiretap Act's two-year statute of limitations barred Lanier's claims against all of the defendants. See 18 U.S.C. § 2520.
Lanier timely filed a notice of appeal, arguing that the district court erred by: (1) granting summary judgment in favor of the defendants; (2) denying Lanier's request to file a second amended complaint; (3) denying Lanier's motion for the appointment of counsel; (4) denying Lanier's motion to compel discovery; (5) striking Lanier's request for admissions and production of documents; (6) denying Lanier's motion for default judgment against Moskowitz and his motion for summary judgment against Warner and Van Sandt; and (7) dismissing the City of Dyersburg as a defendant. We will address each of these claims in turn.
We review a district court's grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When we review a motion for summary judgment, we view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Lanier's complaint alleged that Fay Warner and Marcia Warner Van Sandt tape-recorded calls between Lanier and Dr. Lynn Warner, that Judy Forsythe received a copy of these tape-recorded calls and provided it to the FBI, and that the FBI used the copy of the tape-recorded calls in its criminal investigation and subsequent prosecution of Lanier. Lanier also claimed that the City of Dyersburg, at the FBI's request, eavesdropped on Lanier's telephone conversations without probable cause. The State of Tennessee indicted Lanier on May 20, 1992. Lanier contends that he first became aware in June of 1992 that his telephone conversations had been recorded when the United States Attorney provided him with copies of the tape-recorded conversations in the course of the criminal prosecution. Lanier filed his original complaint in this action in May of 1994.
The Federal Wiretap Act provides a civil cause of action for any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of the Act. 18 U.S.C. § 2520(a). "A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation." 18 U.S.C. § 2520(e); see also Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir.1998); Andes v. Knox, 905 F.2d 188, 189 (8th Cir.1990). The question presented in this action is whether this two-year limitation period expired before Lanier brought his claims under the Federal Wiretap Act.
The defendants carry the initial burden of establishing an absence of evidence to support the timeliness of Lanier's case. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Here, the defendants have provided considerable evidence that Lanier had a "reasonable opportunity to discover the violation" before the indictment. In their motions for summary judgment, the defendants relied upon both Lanier's own deposition and the affidavits of Dr. Lynn Warner and Judy Forsythe. During his deposition, Lanier testified that he knew that his telephone line had been tapped prior to his indictment because other people were able to repeat the content of his seemingly private telephone conversations. Dr. Warner swore in an affidavit that he discovered in 1990 that a conversation that he had with Lanier had been taped, and that he told Lanier that they should not discuss matters over the telephone. Forsythe swore in an affidavit that she received a tape of a conversation between Lanier and Dr. Warner in 1990, and that she told Lanier about the tape at some point in 1991.
Lanier failed to provide significant probative evidence in support of his complaint to defeat the defendants' motions for summary judgment. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. In response to the defendants' motions, Lanier argued that it would have been impossible for him to discover that his telephone conversations were being recorded because no federal court had entered an order allowing the wiretapping. Lanier maintained that he only discovered that his telephone conversations had been recorded when he received discovery materials in connection with his criminal prosecution in June of 1992. This conflicts with his deposition testimony, which indicates that he knew, or at least suspected, that his telephone conversations were being taped during the investigation and prior to his May 20, 1992 indictment. When a motion for summary judgment has been filed, a party cannot create a factual issue by filing an affidavit which contradicts earlier testimony. United States ex rel. Compton v. Midwest Specialties, Inc., 142 F.3d 296, 303 (6th Cir.1998); Dotson v. United States Postal Serv., 977 F.2d 976, 978 (6th Cir.1992). Lanier cannot create a factual issue by contradicting the testimony that he gave in his deposition.
In Davis, the plaintiff argued, as Lanier did to the district court, that he did not know for certain that he had been taped until less than two years before he filed his complaint. The Seventh Circuit, however, held that the statute of limitations began to run when the other party to the conversation informed the plaintiff that the police possessed a...
To continue reading
Request your trial
-
Gray v. United States
...28 U.S.C. § 1915(e)(1). But "the appointment of counsel in a civil proceeding is not a constitutional right." Lanier v. Bryant , 332 F.3d 999, 1006 (6th Cir. 2003) ; see also Shepherd v. Wellman , 313 F.3d 963, 970 (6th Cir. 2002) ("[T]he plaintiffs were not entitled to have counsel appoint......
-
Osborne v. Carey, CIVIL ACTION NO. 2:16-cv-01651
...agree with our sister circuits that Heck applies equally to claims brought under §§ 1983, 1985, and 1986." (citing Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003); Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999))); see also Poston, 222 Fed. App'x at *1 ("Poston's complaint raises c......
-
Trustees of the Sheet Metal Worker v. W.G. Heating
...assertions that more discovery time would have produced evidence to defeat summary judgment will be unavailing." Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.2003) (internal citation omitted). The defendant says that it is too early to pass on summary judgment because the plaintiffs claim ......
-
U.S. v. Gray
...knows — or through due diligence could know — that the statement exists," FED. R.CRIM. P. 16(a)(1)(B)(i). Citing Lanier v. Bryant, 332 F.3d 999, 1005 (6th Cir.2003), Gray contends that Title III does not preclude disclosure of the illegal intercepts under Rule 16. In Lanier, a federal priso......