Von Lusch v. C & P TEL. CO.

• Decision Date: 20 September 1978
• Docket Number: Civ. No. Y-75-1137.
• Citation: 457 F. Supp. 814
• Parties: Richard VON LUSCH et al. v. C & P TELEPHONE COMPANY et al.
• Court: U.S. District Court — District of Maryland

457 F. Supp. 814

Richard VON LUSCH et al. v. C & P TELEPHONE COMPANY et al.

Civ. No. Y-75-1137.

United States District Court, D. Maryland.

September 20, 1978.

COPYRIGHT MATERIAL OMITTED

Philip W. Moore, Easton, Md., for plaintiffs.

Charles P. Featherstun, Baltimore, Md., William A. Franch, Annapolis, Md., Franklin Goldstein, Baltimore, Md., for defendants.

JOSEPH H. YOUNG, District Judge.

The defendants, Eugene Grannan, Julius Grollman and the Chesapeake and Potomac Telephone Company (hereafter C&P) have filed motions for summary judgment on the remaining causes of action pending against them. The plaintiffs, Richard and Marie Von Lusch, have opposed the defendants' motions and have themselves requested summary judgment. The pending claims are under 42 U.S.C.A. § 1983 and state law against all the defendants and under 47 U.S.C. §§ 202 and 605 against C&P.

The genesis of the dispute between the parties was the construction of the Bay Bridge Airport in the mid-1960's vigorously opposed by the plaintiffs. Their opposition included the erection of signs, appeals to the County Commissioners at meetings and by telephone calls to their offices, and a zoning challenge in the state courts. See Von Lusch v. Board of County Commissioners of Queen Anne's County, 268 Md. 445, 302 A.2d 4 (1973); Von Lusch v. Board of County Commissioners of Queen Anne's County, 24 Md.App. 383, 330 A.2d 738 (1975). These efforts ultimately proved to be unsuccessful and the Airport has continued in operation.

Beginning in 1973, Von Lusch also demonstrated his displeasure by repeatedly telephoning the home and business of defendant Grollman and The Bay Bridge Airport whose manager was defendant Grannan.

Subsequently, C&P, reacting to complaints lodged by Grollman and Grannan, placed a pen register¹ on the plaintiffs' telephone. The instrument indicated that on May 5, 1974 (a Sunday) Von Lusch called Grollman at his home or business 41 times. It also picked up 12 calls to the Bay Bridge Airport within a short period on the same day.

Based on this evidence and complaints sworn out by both Grollman and Grannan, Von Lusch was convicted of using the telephone to make repeated calls with an intent to annoy, abuse, torment and harass in violation of Art. 27, § 555A of the Maryland Annotated Code. The conviction was appealed and eventually reversed and remanded by the Court of Appeals for a new trial. On remand, Von Lusch was again convicted. The Court of Special Appeals affirmed in a written opinion, 39 Md.App. 517, 387 A.2d 306, filed June 9, 1978 (No. 1069) and the Court of Appeals denied Von Lusch's subsequent petition for a writ of certiorari on August 18, 1978.

The first of the plaintiffs' remaining causes of action states a claim under § 1983, over which the Court has jurisdiction pursuant to 28 U.S.C. § 1343. Specifically, the plaintiffs complain that the defendants investigated and prosecuted Von Lusch in violation of their constitutional rights.

As a prerequisite to a cause of action under § 1983, the plaintiffs must establish that the defendants acted "under color of state law." The Court previously denied a motion to dismiss on this ground because of an allegation in the complaint that C&P and Grannan conspired with Grollman who was acting in his official capacity as County Commissioner. Perhaps because they recognize that it cannot withstand the scrutiny of summary judgment, the plaintiffs no longer urge this theory of state action.

Instead the plaintiffs first argue that by placing a pen register on their telephone and in collecting information with which to prosecute Von Lusch, C&P (acting in concert with the other defendants) was performing a "public function" and thus was acting "under color of law." See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); cf., Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Jackson v. Met. Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Referring to the negative implications of the Supreme Court's application of the doctrine in Jackson v. Met. Edison Co., supra, the plaintiffs contend that the investigation of criminal activity is a task ordinarily performed by the State and posit that there is a "nexus between the challenged action and the involvement of the State."

However, the Tenth Circuit in VE-RI-TAS, Inc. v. Advertising Review Council of Metro. Denver, Inc., 567 F.2d 963 (1977), refused to apply the public function doctrine to find state action in circumstances very similar to those found here. In that case, the Better Business Bureau investigated and referred to the District Attorney non-member businesses who did not comply with the Bureau's standards for truthful advertising. The court concluded:

All in all, we must say however that the facts show the activities and the relationships to closely approach the public function line, but do not cross it. The evidence is sparse on the use of the BBB, and the related entities, by the law enforcement agencies. They react to submissions by the BBB, but obviously initiate their own investigations and procedures. The BBB clearly does not function as an arm of official enforcement. We thus hold that the test of a public function has not been met.

567 F.2d at 965.

Similarly here there is no evidence to indicate that the state law enforcement officials rely exclusively on C&P pen register information. They clearly use it as evidence but they do not order its obtention or delegate the responsibility for developing a prosecution to the telephone company.

In several cases wiretaps initiated by a telephone company have been held not to constitute the state action necessary to support a criminal defendant's motion to suppress evidence. United States v. Auler, 539 F.2d 642 (7th Cir. 1976); United States v. Clegg, 509 F.2d 605 (5th Cir. 1975). According to the Supreme Court in United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267, n. 7 (1966), the state action required by the Fourteenth Amendment is the equivalent of "under color of law" required by § 1983. Later, in Adickes v. S. H. Kress & Co., 398 U.S. 144, 171, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the Court seemed less sure of this, but implied that, if anything, a showing of state action under § 1983 would require more state involvement than a showing under the Fourteenth Amendment. See 398 U.S. at 210, 90 S.Ct. 1598, (Brennan J., dissenting).

This analogy is reinforced by the fact that in both contexts, the private utilities have acted for purposes other than law enforcement. Generally, in the wiretap cases the companies have sought to protect their own property. Here C&P has provided a service for its customers in connection with the product sold to them.²

For these reasons, the public function doctrine is inapplicable and the plaintiffs' argument on this ground must be rejected.

In the alternative, the plaintiffs argue that C&P (and its co-defendants) were willful participants with the State in the investigation and prosecution of Von Lusch. If established, this would constitute activity "under color of state law" as required by § 1983. See Adickes v. S. H. Kress & Co., supra, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). However, the plaintiffs have failed to adduce any facts which would support an inference that defendants were acting pursuant to an understanding or agreement, explicit or implicit, with the State.

They have presented no facts or circumstances which would indicate that there was any contact by any of the defendants with state law enforcement agencies before the pen register was installed. Conversely, each defendant has expressly sworn that there was no such contact.

Moreover, the undisputed facts show that defendants Grannan and Grollman, annoyed by Von Lusch's repeated telephone calls, complained to the telephone company which responded according to its ordinary practice. Only when they had obtained facts to support their complaint did the defendants report the matter to the police. The mere filing of a complaint by private citizens does not constitute state action. See Perkins v. Rich, 204 F.Supp. 98 (D.Del.1962), aff'd, 316 F.2d 236 (3rd Cir. 1963).

It is true that C&P generally refuses to place a pen register on a telephone unless the complainants intend to prosecute. This policy, however, is not at the insistence or suggestion of the State but is intended to avoid implementation of the procedures when not warranted.

Not only have the plaintiffs failed to make a prima facie showing of action under color of state law, they have also failed to make the required showing of an invasion of their constitutional rights. The complaint includes alleged infringements of the plaintiffs' right to privacy, their protection against unlawful searches and seizures, and their First Amendment rights to petition the government and of free speech. Also raised earlier in these proceedings was the possibility of a due process deprivation in the allegation of a conspiracy to procure Von Lusch's conviction. Nevertheless, none of these averments can be supported in the face of the defendants' motion for summary judgment.

No right to privacy, separate from a Fourth Amendment claim, is at stake here. Such "penumbral" rights are of a different order and a far more intimate nature. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 117 (1973).

The plaintiffs have consistently argued that the deployment of a pen register on their phone constituted an unlawful search and seizure. While the installation of a pen register is clearly not subject to the restrictions of the federal wiretap statute, 18 U.S.C. §§ 2510-2520, its use would arguably implicate Fourth Amendment rights.

The better view, however, is that the operation of a pen register cannot violate Fourth...