Walden v. City of Providence, C.A. No. 04-304 S.

Citation495 F.Supp.2d 245
Decision Date06 July 2007
Docket NumberC.A. No. 04-304 S.
PartiesThomas WALDEN, et al., Plaintiffs v. CITY OF PROVIDENCE, et al., Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

David L. Krech, Jones Associates, Mark A. Fay, Murphy & Fay, L.L.P., Providence, RI, Carolyn A. Mannis, Providence, RI, for Plaintiffs.

Kevin F. McHugh, Michael A. Calise, City of Providence, Department of Law, George L. Santopietro, Coia & Lepore, Ltd., Providence, RI, Dean G. Robinson, East Providence, RI, Stephen R. Famiglietti, Susan M. Carlin, Famiglietti & Carlin, Ltd., Lincoln, RI, Thomas J. Cronin, Gunning & LaFazia, Providence, RI, for Defendants.


WILLIAM E. SMITH, United States District Judge.

I. Introduction

More than 100 Plaintiffs filed this action1 under 42 U.S.C. § 1983 and 18 U.S.C. § 2511 alleging that the City of Providence, Mayor David N. Cicilline, Chief of Police Colonel Dean Esserman, former Chief of Police Urbano Prignano, Jr., Communications Director Manuel Vieira and former Chief of Operations of the Communications Department Mary Lennon2 violated their statutory and constitutional rights when they installed a telephone call recording system at the Providence Public Safety Complex.3 Defendants all move to dismiss Plaintiffs' claims, or in the alternative for summary judgment. The court will construe all the motions as motions for summary judgment, and after careful review of the legal and factual bases for Defendants' motions, the Defendants' Motions for Summary Judgment will be DENIED.4 Because of the complexity of the matter, the Court will set forth its reasoning in some detail; this will, as well, hopefully set the stage for trial.5

II. Facts

The following facts are undisputed, or if disputed are taken in a light most favorable to the non-moving party, in this case the Plaintiffs. See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997).

This lawsuit arose out of events that transpired in the planning and use of a telephone recording system, the "Total Recall" system, in the new Providence Public Safety Complex ("PPSC" or "Complex"). While it was in place, the Total Recall system recorded hundreds of thousands of incoming and outgoing telephone calls. The numerous Plaintiffs — employees or family members of employees of the City of Providence — allege that their statutory and civil rights were violated by the unauthorized recording of their telephone conversations.

In December 2001, representatives from the City's Communications, Fire, and Police Departments convened to discuss the proposed but not yet constructed Public Safety Complex. The representatives, including Vieira, decided that a recording system should be installed in the PPSC and, although the exact timing is unclear, at some point a request for proposals for what was termed the "Total Recall" computer system was presented to the Board of Contracts and Supplies, and the Total Recall system was put out to bid. After receiving bids, the Board of Contracts awarded the contract for the Total Recall system to Expanets, Inc., a Houston, Texas-based integrated communications company. The system Expanets proposed to install was described as a "digital, Webbased, call logging software system."

There was some discussion about whether the recorded lines would be equipped with an audible signal that alerted callers that the call was being recorded, but it was ultimately decided that no signal should be included. In addition, the system could have been configured to verbally announce to callers that their calls were being recorded, but this feature was also never utilized. These decisions were made without consultation or advice from the Providence City Solicitor's office.6 However, before the PPSC opened, Major Dennis Simoneau sent a department-wide e-mail on July 22, 2002, which was delivered to and received by over 500 Police Department and Telecommunications Department personnel that contained the following notification: "Know that all telephone lines in the new station are recorded and thus speak professionally at all times. [Desk Sargeants] please alert all of your clerks of this fact." At the time Major Simoneau sent this e-mail, he was unsure whether all lines in the PPSC would in fact be recorded (or, for that matter, that the system had already begun to record the PPSC's telephone lines). All the Plaintiffs in this case, however, claim that they never received any notice (including Major Simoneau's e-mail) that the telephone lines were being recorded.

The system was activated and began recording calls on May 23, 2002, even though the PPSC had yet to officially open. Nevertheless, when the PPSC opened at the end of July 2002, the Total Recall system was operational and recorded most of the building's incoming and outgoing phone calls. The system continued, for nearly ten months, to record almost all of the Complex's telephone lines, with some exceptions. Certain extensions were removed from the recording list, including, allegedly, Vieira's own personal line. In addition, the system did not record "station-to-station" calls that were made within the building itself or, importantly, incoming and outgoing lines located M the male, female and juvenile detention areas, which are intended for detained individuals.

The last call was recorded and archived on February 10, 2003, when Police Chief Dean Esserman learned about Total Recall's existence and ordered it shut down; he also asked Assistant Chief Rosenzweig to inquire into its origins, and soon after the State Police took over the investigation and eventually issued a report.7 The State Police Forensics Report indicates that in the approximately ten months Total Recall functioned, it created and archived 754,564 audio files of recorded phone conversations. The report was forwarded to the Attorney General's office, which reviewed it and determined that there was insufficient evidence to support a finding of criminal liability.

Of all the calls recorded, only three calls were ever downloaded and listened to. Fire chief Dutra listened to a call regarding a man in the water and the Fire Department's response; Major Dennis Simoneau listened to a call about the towing of a car; and an unidentified City Councilman also listened to a call.8

Additional disputed and undisputed facts are summarized below in relation to each individual Defendant.

A. Defendant Prignano

Until January 31, 2001, Defendant Prignano was the Chief of the Providence Police Department. It is undisputed that Colonel Prignano retired before construction began on the PPSC. There is, however, some dispute as to when initial meetings about the Public Safety Complex's proposed telephone system were held, the time line of the request for proposals and bidding process for the telephone system, and the extent of Colonel Prignano's involvement in procuring the system. Prignano contends that he had no part in the initial meetings or the drafting of the request for proposals, and, for that matter, had "never even heard of `The Total Recall System' before February 2003." Plaintiffs, on the other hand, contend that there is evidence that Defendant Prignano "met," or at least conversed, with the Director of the Department of Communications, Vieira, about the telephone system while Prignano was Chief' of Police. Plaintiffs submit that during that conversation, Prignano procured Vieira to install a recording system that would record almost all of the incoming and outgoing calls in the new PPSC. Assistant Chief Rosenzweig stated that Vieira told him that Prignano asked for a system with "all the trinkets," and "all the hells and whistles." Plaintiffs also assert that Vieira carried out Prignano's directions by instructing Greg Desmarais, a technician in the Communications Department, to prepare a request for proposals for a system that could record all calls.

B. Defendant Vieira

Defendant Vieira served as the Director of Communications for the City of Providence from 1993 through February 2003. It is undisputed that Vieira did not himself award the bid for the Total Recall system. Plaintiffs allege that Vieira, at the instruction of Colonel Prignano, instructed Anthony Desmarais, a radio engineer in the Department, to prepare a request for proposals for a telephone system that could record everything in the Complex. Plaintiffs also assert that approximately two weeks after the system was installed, Vieira instructed Desmarais to cease recording of several telephone lines, including Vieira's line, Vieira's secretary's line, and the line in the communications conference room.

Vieira, on the other hand, asserts that he never spoke to Tony Desmarais about recording any lines except for the central station and the management system, and did not in fact know that lines other than the central station or emergency lines may have been recorded until January 2003. He moreover claims that Total Recall functioned to record emergency lines used by clerks at the PPSC and for general record management of telephone calls in the PPSC, including identification of telephone abuse, such as telephone calls to "900" numbers.9 Vieira contends that he first realized that a line other than the central station or emergency lines may have been recorded after a conversation with Fire Chief Dutra in early to mid-January 2003.

Whatever Vieira's knowledge prior to January 2003, it is undisputed that after his conversation with Fire Chief Dutra, Vieira contacted City Solicitor John D'Amico and requested a meeting with representatives from the Fire, Police, and Communications Departments. That meeting was scheduled, but later cancelled. It is also undisputed that Vieira was never given a password to access the Total Recall System and did not know how to access a recorded phone conversation stored therein.

C. Defendant Lennon

Defendant Lennon was employed as the Chief of Operations in the...

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