Peavy v. Dallas Independent School Dist.

• Citation: 57 F.Supp.2d 382
• Decision Date: 31 August 1999
• Docket Number: No. Civ.A.3:97-CV-2163-L.,Civ.A.3:97-CV-2163-L.
• Parties: Carver Dan PEAVY, Plaintiff, v. DALLAS INDEPENDENT SCHOOL DISTRICT and Sandy Kress, Defendants.
• Court: U.S. District Court — Northern District of Texas

57 F.Supp.2d 382

Carver Dan PEAVY, Plaintiff, v. DALLAS INDEPENDENT SCHOOL DISTRICT and Sandy Kress, Defendants.

No. Civ.A.3:97-CV-2163-L.

United States District Court, N.D. Texas, Dallas Division.

August 31, 1999.

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Michael J. Quilling, Kenneth A. Hill, Quilling, Selander, Cummiskey, Clutts & Lownds, P.C., Dallas, TX, for Plaintiff.

Robert H. Mow, Jr., Kim J. Askew, Bart Sloan, Hughes & Luce, L.L.P., Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

LINDSAY, District Judge.

Before the court are Defendants' Motion for Summary Judgment, filed June 16, 1998; Defendants' Brief in Support of Motion for Summary Judgment, filed June 16, 1998; Plaintiff's Response to Defendants' Motion for Summary Judgment, filed July 6, 1998; Plaintiff's Brief in Support of Response to Defendants' Motion for Summary Judgment, filed July 6, 1998; and Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment, filed July 21, 1998. After careful consideration of the motion, response, reply, evidence, and the applicable law, the court, for the reasons that follow, grants Defendants' Motion for Summary Judgment.

I. Procedural and Factual Background

Peavy filed this action on September 3, 1997, against Dallas Independent School District ("DISD") and Sandy Kress ("Kress"), who was president of the Board of Trustees ("Board") of DISD and presided over all meetings of the Board. Peavy is a former trustee of DISD. He contends that telephone communications between him and another individual were illegally intercepted and recorded. A transcript of these communications was read into the record and discussed at a DISD Board meeting on September 28, 1995, and they were subsequently disclosed to members of the media. Peavy contends that DISD and Kress violated his rights under the federal Wiretap Act, 18 U.S.C. § 2510 et seq., by (a) refusing to stop the reading of the transcript and allowing it to be read into the record and discussed at the Board meeting and (b) disclosing the transcript to members of the media and others at a subsequent time. By order dated December 29, 1997, the court dismissed with prejudice Peavy's claim against DISD for violating the federal Wiretap Act, (hereafter referred to as "the Act").

Plaintiff also contends that Defendants violated his constitutional right to privacy by allowing the transcript to be read into the record and discussed at a Board meeting on September 28, 1995 and by disclosing it to the media and others on September 29, 1995. Peavy seeks relief pursuant to 42 U.S.C. § 1983.¹

Defendants contend that no violation of the Act occurred, that they have not caused Plaintiff to be deprived of any federally protected constitutional or statutory right and that Plaintiff has suffered no damages as a result of their actions. Kress also contends that he is entitled to qualified immunity. Defendants have moved for summary judgment on all claims raised by Plaintiff.

On Thursday afternoon, September 28, 1995, an anonymous person delivered to at least three DISD trustees, Kathlyn Gilliam, Yvonne Ewell, and Jose Plata, copies of an audio tape (the "Tape") of an intercepted conversation(s) between Peavy and another individual. DISD staff transcribed the Tape. Although the conversation is primarily between Peavy and an individual, the transcript reveals that several other individuals were parties to a portion of the conversation(s). Later that same day (evening), during the "report" period of the regularly scheduled Board meeting, trustees Gilliam and Ewell read the transcript into the record of the Board meeting.² The "report" period of a meeting is when Board members discuss or report on events or matters of interest or concern taking place in their respective districts. Peavy did not attend the meeting on September 28, 1995. Defendants did not prevent Peavy from attending the meeting. Kress did not stop, or attempt to stop, Ewell and Gilliam from reading the transcript into the record. Peavy, who had been a trustee for over seven years, resigned on October 5, 1995.³

II. Analysis

A. Summary Judgment Standard

Summary judgment shall be rendered when 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 judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5 th Cir.1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ragas, 136 F.3d at 458.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied; 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support Plaintiff's opposition to Defendants' motion. Id., Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

B. Plaintiff's Wiretap Claims

Peavy contends that Kress violated 18 U.S.C. § 2510 et seq., the federal Wiretap Act, and is therefore liable to him for damages. Kress contends that he did not use or disclose the contents of the Tape or transcript, had no intent to use or disclose the contents of the Tape or transcript, and had no knowledge or reason to know that the Tape was illegally obtained.

For purposes of this action, the Wiretap Act provides in pertinent part a civil remedy against any person who:

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; [or]

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

18 U.S.C. § 2511(1)(c) and (d). To prevail on a "disclosure or use" claim under the Act, Peavy must establish that the disclosure or use "was intentional, that the information obtained was obtained from an intercepted communication, and that the defendant knew or should have known that the interception was illegal." Forsyth v. Barr, 19 F.3d 1527, 1538 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). Under this standard, Peavy must not only establish that Kress knew he was disclosing or using information from an intercepted communication but also that Kress knew that neither party to the intercepted communication had consented to its interception, Id. at 1538, thereby making it illegal.

For the purposes of this analysis, the court assumes that the Tape was obtained by means of an unlawful interception. The court has pored over the entire summary judgment record and finds that the record is totally devoid of any competent summary judgment evidence that Kress knew or should have known that the Tape was the result of an illegal interception, or that Kress knew that neither party to the intercepted conversation had consented to its interception. Although Peavy talked to Kress prior to the meeting on September 28, 1995 concerning the Tape, Peavy never told Kress or anyone at DISD that the Tape was illegally obtained, or that he thought it to have been illegally obtained, until he filed this action on September 3, 1997. Peavy acknowledges that he did not know whether Kress knew that the Tape was illegally obtained. Also, at the time of the meeting on September 28, 1995, nothing in the record indicates that Peavy himself knew that the Tape was illegally obtained. Peavy sets forth the following set of facts, which he contends "clearly demonstrate" that Kress knew, or had reason to know, that the Tape was illegally made:

Kress initially learned about...