Walker v. Darby, CV No. 88-HM-5256-NW.

• Decision Date: 10 February 1989
• Docket Number: CV No. 88-HM-5256-NW.
• Citation: 706 F. Supp. 1467
• Parties: Jessie WALKER, Plaintiff, v. Thomas E. DARBY, Hugh L. Robinson, Jr., and Kenneth Day, Defendants.
• Court: U.S. District Court — Northern District of Alabama

706 F. Supp. 1467

Jessie WALKER, Plaintiff, v. Thomas E. DARBY, Hugh L. Robinson, Jr., and Kenneth Day, Defendants.

CV No. 88-HM-5256-NW.

United States District Court, N.D. Alabama, Northwestern Division.

February 10, 1989.

John R. Benn, Slusher & Benn, Florence, Ala., for plaintiff.

Frank W. Donaldson, U.S. Atty., James D. Ingram, Asst. U.S. Atty., Birmingham, Ala., for defendants.

MEMORANDUM OF DECISION

HALTOM, District Judge.

The above entitled civil action was commenced on May 27, 1988 by plaintiff Jessie Walker, a black male letter carrier employed by the United States Postal Service in Florence, Alabama, against defendants Thomas E. Darby, Hugh L. Robinson, Jr. and Kenneth Day plaintiff's supervisors at the main Florence Post Office alleging that on or about November 1987 and for a period of several days defendants engaged in unlawful practices at the main Florence postal facility which amounted to illegal eavesdropping of his private worksite conversations with third parties in violation of 18 U.S.C. § 2520¹ and did thereby knowingly or intentionally invade and violate his right to privacy under Alabama law by such illegal practices and is now before the Court upon motion of defendants for summary judgment in their favor with respect to all claims for relief herein asserted by plaintiff against movant defendants.²

STANDARD OF REVIEW

In ruling on motions for summary judgment this Court must consider all evidence in light most favorable to the non-moving party. Rollins v. TechSouth, 833 F.2d 1525, 1528 (11th Cir.1987). But as the Supreme Court noted, this does not lessen the burden of the non-moving party in any way. The non-moving party still bears the burden of coming forward with sufficient evidence of every element that he or she must prove. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In addition, a court ruling on a summary judgment motion must evaluate the evidence in light of the proper standard of proof. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "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." The Supreme Court has mandated that this standard requires summary judgment "against a party who fails to make a showing sufficient to establish the existence of any element essential to that party's case and on which the party will bear the burden of proof at trial." Celotex, 477 U.S. 317, 106 S.Ct. 2548. See Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir.1988), for elaboration.

RELEVANT FACTS OR ABSENCE THEREOF

In this summary judgment proceeding plaintiff Jessie Walker has failed to come forward with any factual specifics showing: 1 the contents or nature of his oral communications allegedly intercepted by defendants at the Florence, Alabama Post Office; 2 which defendant or defendants intercepted his oral communications; 3 how, when; 4 or in what manner his oral communications were intercepted; 5 or what evidence exists to show with some degree of specificity that his oral worksite conversations were in fact actually intercepted by defendants. Stretching the submitted evidentiary matter to its outer limits, there is in this summary judgment record innuendo that one of the defendants might have sought at some unidentified time in late 1987 to intercept some unidentified portion of some unidentified worksite oral communication of plaintiff Jessie Walker by some unidentified means.³

The plaintiff contends that the defendants intercepted a conversation he had with Rodney Hollis, Jr., another letter carrier, near Walker's letter case in late 1987 Deposition transcript of Jessie Walker, p. 5, line 25 to p. 6, line 9.

Q. I wanted to ask you a few questions concerning the lawsuit that you have filed against the three defendants in this suit. Are you familiar with the complaint that was filed on your behalf by Mr. Benn?

A. Yes.

Q. You read that complaint?

A. Yes.

Q. I'd like for you to be specific for me and state what specific oral communications you are referring to as the basis for this lawsuit.

A. I'm referring to the conversation which I had with Rodney Hollis in which he told me one morning after they had moved upstairs from the annex that in a conversation with Kenny Day — he said that they could stand in Darby's Office — first he told me "Be careful what you say. Your case is bugged." They told him that —

Q. Who told you this?

A. Rodney Hollis, that they could hear — in Gene Darby's office they could "hear everything that nigger says." That they could hear mumbling.

Dep.Tr. of Jessie Walker 9-29-88, p. 5, 1. 9 to p. 6, 1. 9.

* * * * * *

Q. Let me make sure I understand this right. The basis for this complaint is you're saying that the three defendants were eavesdropping to your conversation that you had with Rodney Hollis; is that correct?

A. Yes.

Q. You don't know when that conversation occurred?

A. I don't know the exact date. I don't know if they was eavesdropping on that conversation that Rodney and I had. Rodney only told me about the conversation that he and they had when they told him that my case was bugged.

Q. Isn't it a fact, though, Mr. Walker, that you don't know from your own personal knowledge of any conversations that were bugged?

A. I don't know the conversation. I know that—I only know what he told me, and I believed him.

Q. You don't know, for a fact, firsthand that any of your conversations were bugged, do you?

A. Firsthand, no.

Dep.Tr. of Jessie Walker, p. 17, 1. 16 to p. 18, 1. 9.

* * * * * *

Q. Explain to me, for my own knowledge, how you claim that conversation you had with Rodney Hollis that day, whenever it was, was intercepted?

A. I didn't say it was intercepted.

Q. Yes, you did.

A. I did not. I didn't say it. I said he was talking low as though to keep it from being heard. But I didn't say that we had conversation that was intercepted.

Q. So you don't know of any conversation that was intercepted?

A. No.

Dep.Tr. of Jessie Walker, p. 20, 1. 12-23.

* * * * * * Q. Well, then, I will stand corrected. Let me rephrase the question, Mr. Walker. On the basis of the troubles that you claim were inflicted upon you in the work space for the last two or three years, plus what Rodney Hollis told you, that serves as a basis for this lawsuit; is that correct?

A. That and a letter that Rodney Hollis wrote.

Q. Doesn't it still boil down to the fact that you're relying on what someone else told you to file this lawsuit; is that correct?

A. On what someone else told me and the troubles that I'd had, yes.

Dep.Tr. of Jessie Walker, p. 19, 1. 15 to p. 20, 1. 1.

Counsel of record for defendants convincingly argues in brief that the conclusion to be reasonably drawn from the deposition testimony of plaintiff Jessie Walker above set out is that plaintiff's lawsuit is based, not on his own knowledge of facts that would give rise to a cause of action against defendants under 18 U.S.C. § 2520 and under state law relating to right of privacy, but rather on hearsay and double hearsay and the fact that he has had trouble with his supervisors at work Memo. of Law In Support of Defendants' Motion For Summary Judgment, p. 6.

The deposition transcript of Rodney H. Hollis, Jr. tell the hearsay story:

Q. What you told Jessie Walker the next day, that was based solely on what Kenny had told you?

A. Right. But I'm not sure it was the next day. There could've been a few days elapsed there.

Q. But what you told Jessie Walker based solely on what Kenny told You.

A. Absolutely.

Q. And you personally never saw any listening devices or microphones or wires on Jessie Walker's case or work area?

A. No, I did not.

Dep.Tr. of Rodney H. Hollis, Jr., at p. 18, 1. 10-20.

* * * * * *

Q. To your knowledge, did Jessie Walker ever uncover or discover any evidence of anyone in the Post Office listening to his conversations?

A. Not as far as I know.

Dep.Tr. of Rodney H. Hollis, Jr., at p. 19, 1. 23 to p. 20, 1. 1.

* * * * * *

Q. Mr. Hollis, aside from what you just testified to, based on your own personal relationship with Mr. Day, the statement that you have said Mr. Day made to you regarding, "You ought to see what we put in Darby's office," you don't have any way of knowing, positively, that he was actually telling you the truth on that?

A. No.

Dep.Tr. of Rodney H. Hollis, Jr., at p. 30, 1. 16-22.

In addition plaintiff's counsel also took the depositions of seven Postal Service letter carriers in Florence, all of whom worked with Walker. Much of the deposition testimony of these seven Postal Service employees is based on hearsay, speculation and conjecture; and cross-examination of these deponents by defendants' counsel of record reveals that none of these seven individuals had any first-hand knowledge of the defendants' actually intercepting Jessie Walker's worksite conversations at the main Florence Post Office. See Dep.Tr. of Rodney H. Hollis, Jr., at p. 19, line 20 through line 25; p. 20, line 1; Dep.Tr. of Harold L. Hovater, Sr., at p. 25, line 22 through line 25; p. 16, lines 1 through 4; Dep.Tr. of Rodney A. Nelson, at p. 11, line 5 through 18; Dep.Tr. of Mike Naley, at p. 16, line 17 through line 35 and at p. 17, line 1; p. 17, line 2 through line 25; p. 25, line 1 through 12; Dep.Tr. of Alan Gray, at p. 19, line 2 through line 13; Dep.Tr. of Carter Gamble, at p. 10, line 19 through line 23; and Dep.Tr. of William Thomas Childers, at p. 11, line 21 through line 25; p. 12, line 1 through 11.

The Court has carefully reviewed what counsel of record for plaintiff Jessie Walker represents in brief to be the...