Gilday v. Dubois

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1831
WILLIAM MORRILL GILDAY, JR.,

Plaintiff, Appellant,

v.

LARRY DUBOIS, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Cyr, Circuit Judge,

Stearns, U.S. District Judge,

and Gertner, U.S. District Judge.

Mark M. Owen, with whom Edward S. Rooney, Jr., Andrea C. Dow and
Lyne, Woodworth & Evarts LLP were on brief for appellant.
Philip W. Silva, Department of Correction, with whom Nancy Ankers
White, Special Assistant Attorney General, was on brief for appellees
Dubois and Matesanz.
Thomas R. Teehan for appellee New England Telephone and Telegraph
Company.
Susan E. Stenger, with whom Lawrence G. Green and Perkins, Smith
& Cohen, LLP were on brief for appellee AT&T Corp.

August 29, 1997

Of the District of Massachusetts, sitting by designation.

Of the District of Massachusetts, sitting by designation.

CYR, Circuit
Judge. Plaintiff William Morrill Gilday,

Jr. challenges a summary judgment ruling dismissing his civil

rights claims and related claims for civil contempt against

appellees Larry Dubois and James Matesanz, of the Massachusetts

Department of Correction ("DOC"), and appellees American Telephone

and Telegraph Corporation ("AT&T") and New England Telephone and

Telegraph Company ("NET"). As Gilday failed to generate a

trialworthy issue with respect to any claim, we affirm the district

court judgment.

I

BACKGROUND

After killing a Boston police officer during a 1970 bank

robbery in Brighton, Massachusetts, Gilday was convicted of first

degree murder and armed robbery, for which he is now serving

concurrent life sentences at the Bay State Correctional Center in

Norfolk, Massachusetts. In 1974, Gilday commenced a civil rights

action in federal district court against various FBI and DOC offi-

cials,
see
Gilday v.
Webster, No. 74-4169-C, alleging interference

with attorney-client communications in violation of the Sixth and

Fourteenth Amendments, and violations of the federal and state

wiretap statutes, 18 U.S.C. SS 2510
et
seq., and Mass. Gen. L. ch.

The relevant facts are related in the light most favorable to
Gilday, against whom summary judgment entered.
Hegarty v.
Somerset
County, 53 F.3d 1367, 1370, n.1 (1st Cir.), cert. denied, 116 S.
Ct. 675 (1995).

2

272, SS 99
et
seq. Gilday alleged that federal and state officials

were opening his prison mail and intercepting his telephone

communications in a coordinated effort to gather information

regarding others involved in the Brighton bank robbery.

Approximately ten years later, Gilday and four DOC

officials entered into a stipulation ("settlement stipulation")

which led to the following permanent injunction against the DOC and

the defendant DOC officials on September 12, 1984 ("the Gilday

injunction"):

PERMANENT INJUNCTION

Having reviewed and approved the Settle-
ment Stipulation dated September 10,
1984, and after hearing, it is hereby
ORDERED, DECREED AND ADJUDGED as follows:
1. All officers, agents, ser-
vants, employees and attorneys
of the Department of Correction
are enjoined permanently, under
both 18 U.S.C. S 2510 et seq.
and M.G.L. c. 272, S 99 et
seq., from intercepting, en-
deavoring to intercept, or pro-
curing any other person to in-
tercept or endeavor to inter-
cept, any wire communication by
or to plaintiff William Gilday
without a specific court order
or legislative authorization to
do so, except as specifically
permitted by these statutes,
taken together, as they have
been amended or may be amended

Around the same time, Gilday brought a
pro se action against
four supervisory DOC officials alleging due process violations,
denial of access to the courts, and theft of personal belongings.
See Gilday v. Boone, 657 F.2d 1 (1st Cir. 1981).

Gilday proceeded with the action against the nonsettling DOC
officials.

3

and
as
they
have
been
construed
or
may
be
construed
in
reported
decisions that are binding in
this Court or in the state
courts of Massachusetts.

2. [mail restrictions]

3. This
Permanent
Injunction,
entered pursuant to the settle-
ment stipulation dated Septem-
ber 10, 1984, shall operate
prospectively only; it shall
not prejudice the rights of
nonsettling defendants or, of
its own force, affect the
rights of inmates other than
William Gilday.

(Emphasis added.)

Over the next ten years, however, developments in

electronic technology, as well as inmate ingenuity, prompted

increased prison-telephone abuses, such as acquiring merchandise

by fraud, promoting drug violations, soliciting murder, harassing

crime victims, witnesses, and public officials, facilitating escape

plots, violating court restraining orders, and threatening domestic

violence. The DOC responded in 1993 by inviting telephone-system

vendors to furnish, install, and maintain an advanced prison

telephone system designed to deter inmate abuses by monitoring,

recording, and "detailing" their calls.

Ultimately, NET contracted to produce, install, and

For example, one DOC inmate alone managed to mischarge 271 so-
called "third-party" calls to a single business firm in one month.
See infra note 19.

Call "detailing" involves recording such billing-related
matters as the number called and the duration of the call.

4

maintain an inmate telephone system for all DOC facilities, which

became known as the Massachusetts Inmate Telephone System ("MITS"),

to supply both local and long distance service and remit to the DOC

forty percent of the gross revenues from inmate calls. NET in turn

subcontracted with AT&T to furnish long distance MITS service. A

third company, Telematic Corporation, contracted with AT&T and NET

to provide the electronic equipment and software needed to

provision the system.

On April 8, 1994, the DOC promulgated new inmate

telephone regulations, see 103 C.M.R. SS 482.00 et seq. ("MITS

Regulations"), "establish[ing] Department procedures regarding

access to, use of and the monitoring and/or recording of inmate

telephones." Id. S 482.01. Under the MITS Regulations, a personal

identification number ("PIN") is randomly assigned to each inmate.

The inmate must dial the assigned PIN immediately before dialing

the telephone number, whereupon an automatic operator completes the

connection. No more than fifteen designated parties are accessible

with any PIN: ten friends and family members and five attorneys.

See id. S 482.07(3)(c); Bender Aff. q 8. The right to call

designated attorneys may not be suspended or curtailed except

during an institutional emergency, see id. SS 482.08-482.09,

whereas the right to call other designated parties is subject to

disciplinary restriction, see id. SS 482.07(3)(h), 482.09. In

addition, all inmates are allowed to call three prison legal-

service organizations.

Stickers on all MITS telephones alert inmates to the

5

monitoring/recording regime. All inmate calls, except pre-

authorized attorney calls and legal-service organization calls, are

automatically recorded. Certain "detailing" information is

recorded on all calls either attempted or completed. Finally, all

except attorney and legal-service organization calls may be

subjected to concurrent monitoring (
i.e., listened in on) by autho-

rized DOC personnel, either at random or for investigative

purposes. See id. S 482.07(3)(d).

In order to obtain an individual PIN, the inmate must

complete and sign a "Number Request Form," designating the attorney

and nonattorney telephone numbers which may be called. The form

advises inmates that their "acceptance and use of a PIN and use of

inmate telephones shall be deemed as consent to the conditions and

restrictions placed upon inmate telephone calls, including call

monitoring, recording, and call detail." All inmate calls must be

placed "collect." Id. S 482.07(3)(a). Each call begins with a

recorded message audible by both parties that the call has

been placed "collect" by a DOC inmate and is subject to recordation

and "detailing." See
id. S 482.07(3)(g); Kennedy Aff. q 10. Both

parties hear the entire message, but there can be no communication

until the collect call has been accepted by the person called.
See

103 C.M.R. S 482.07(3)(f); Bender Aff. q 11.

Gilday declined to submit a PIN request form, on the

ground that the MITS contravenes the federal and state wiretap

6

statutes and therefore violates the Gilday injunction. At about

the same time, Gilday mailed AT&T and NET copies of the Gilday

injunction entered September 12, 1984,
see
supra pp. 3-4, advising

that their provision of MITS services would violate the injunction.

Shortly thereafter Gilday petitioned the federal district

court for a contempt citation against AT&T, NET, and various DOC

officials, claiming that the defendants were "endeavoring to

intercept" his telephone communications. Although neither AT&T nor

NET was privy to the Gilday injunction, Gilday asserted that both

received actual notice by mail, supra pp. 6-7, and therefore

knowingly aided and abetted the alleged violations by the DOC

defendants. Finally, Gilday alleged, the defendants were depriving

him of his "federal right to be free of any interception of his

wire communications," as well as his Sixth Amendment right to

counsel and his Fourteenth Amendment right of access to the courts,

by restricting consultation with counsel regarding six pending

judicial proceedings.

The district court entered summary judgment for the

defendants, on the ground that the Gilday injunction bans neither

monitoring nor recording, but only "interceptions." It noted that

no secretive, nonconsensual monitoring or recording hence no

Consequently, for the most part Gilday has been without
telephone access since the MITS went into operation. Under a
stipulation among the parties, however, he has been allowed limited
telephone use in order to communicate with counsel regarding his
unrelated appeal in Gilday v. Callahan, 866 F.Supp. 611 (D. Mass.
1994),
aff'd, 59 F.3d 257 (1st Cir. 1995),
cert.
denied, 116 S. Ct.
1269 (1996).

7

"interception"
had occurred under either wiretap statute, since

all recording and monitoring is well advertised as required by the

MITS Regulations. See supra p. 6. The district court reasoned

that inmates render the MITS monitoring/recording regime consensual

by executing the request form and utilizing the MITS. And since it

found the term "interception" ambiguous at best, the district court

determined to resolve any interpretive doubts favorably to the

defendants. Finally, it dismissed the Gilday claims relating to

call "detailing," on the ground that
Langton v.
Hogan, 71 F.3d 930

(1st Cir. 1995), had already endorsed the MITS practice in this

regard. Accordingly, it concluded that the attendant recording and

monitoring did not constitute an "interception" under either the

federal or state wiretap statute, thus did not contravene the

Gilday injunction.

Thereafter, the district court dismissed the section 1983

claims as well, on the ground that Gilday retained all mail

privileges, access to a prison law library, the right to meet with

counsel and, under the MITS regulations, the right to conduct

unmonitored telephone communications with five attorneys and three

legal-service organizations.

The district court likewise determined that the defendant DOC
officials came within the "law enforcement" exceptions to the
respective wiretap statutes. See 18 U.S.C. S 2510(5)(a)(ii)
(excluding interceptions by an "investigative or law enforcement
officer in the ordinary course of his duties"); Mass. Gen. L. ch.
272, S 99(D)(1)(c) (exempting federal law enforcement officials);
see also, e.g., United
States v. Sababu, 891 F.2d 1308, 1328-29
(7th Cir. 1989) (concluding that a prison monitoring regime,
conducted as part of an "institutionalized, ongoing policy[,]" does
not constitute "interception").

8

II

DISCUSSION

A. Standard of Review

A summary judgment ruling is reviewed
de
novo and must be

affirmed if the record, viewed in the light most favorable to the

nonmoving party, "reveals no trialworthy issue of material fact and

the moving party is entitled to judgment as a matter of law."

Velez-Gomez v. SMA
Life
Assur.
Co., 8 F.3d 873, 874-75 (1st Cir.

1993). Moreover, we may affirm "on any independently sufficient

ground." Polyplastics,
Inc. v. Transconex,
Inc., 827 F.2d 859,

860-61 (1st Cir. 1987).

B. The Contempt Claims

Gilday mounts several challenges to the district court

rulings on the contempt claims. We address these arguments in

turn, mindful that it was for Gilday to establish by "'clear and

convincing evidence[,]'" Project B.A.S.I.C. v. Kemp, 947 F.2d 11,

16 (1st Cir. 1991) (quoting Langton v. Johnston, 928 F.2d 1206,

1220 (1st Cir. 1991)), that the particular defendant violated an

unambiguous consent decree "that left no reasonable doubt as to

what behavior was to be expected,"
id. at 17. See
also
Porrata v.

Gonzalez-Rivera, 958 F.2d 6, 8 (1st Cir. 1992) (stating that

complainant must clearly establish that "a lucid and unambiguous

consent order has been violated"); NBA Properties, Inc. v. Gold,

895 F.2d 30, 32 (1st Cir. 1990) (similar). Moreover, "'the party

enjoined must be able to ascertain from the four corners of the

order precisely what acts are forbidden.'" Kemp, 947 F.2d at 17

9

(quoting Drywall Tapers & Painters of Greater N.Y., Local 1974 v.

Local 530 of Operative Plasterers & Cement Masons Int'l Ass'n
, 889

F.2d 389, 395 (2d Cir. 1989) (citation omitted));
see
also
Reed v.

Cleveland Bd. of Educ.
, 607 F.2d 749, 752 (6th Cir. 1979) (stating

that judicial order must "clearly tell a reasonable person what he

is required to do or abstain from doing"). From these requirements

flows the important corollary that courts are to construe ambigu-

ities and omissions in consent decrees as "'redound[ing] to the

benefit of the person charged with contempt.'"
NBA Properties
, 895

F.2d at 32 (quoting Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir.

1971) (per curiam)); see also Kemp, 947 F.2d at 16 (same).

1. Issue Preclusion

As a threshold matter, Gilday insists that the DOC

defendants are collaterally estopped from contending that the MITS

does not violate the Gilday injunction, because this issue was

resolved in Langton v. Hogan, No. 79-2167-Z, 1995 WL 96948 (D.

Mass. Feb. 21, 1995), which culminated in a permanent injunction

("the Langton injunction") almost identical to the Gilday injunc-

tion.

Collateral estoppel, or issue preclusion, bars

relitigation of any issue "
actually decided in previous litigation

'between the parties, whether on the same or a different claim.'"

Grella v.
Salem Five Cent Sav. Bank
, 42 F.3d 26, 30 (1st Cir. 1994)

(quoting
Dennis v.
Rhode Island Hosp. Trust
, 744 F.2d 893, 899 (1st

Cir. 1984) (emphasis in original) (quoting
Restatement (Second) of

Judgments, S 27 (1982)). Although "[a]n issue may be 'actually'

10

decided even if it is not explicitly decided, for it may have

constituted, logically or practically, a necessary component of the

decision reached in the prior litigation,"
Grella, 42 F.3d at 30-31

(emphasis in original), the narrow, fact-based district court

decision in
Langton had simply declined to
modify the injunction in

that case, to permit monitoring and recording,
because
there
was
no

evidence of inmate-telephone abuse by Langton or his fellow

plaintiff. Thus, as the district court ruling on the petition for

modification in Langton neither addressed nor implicated the

question whether the MITS violates either the state or federal

wiretap statute, see Langton, No. 79-2167-Z, 1995 WL 96948, it

neither "actually" nor "necessarily" determined that the MITS

regime violated the Langton injunction, let alone the Gilday

injunction. See
Grella, 42 F.3d at 30 (stating that "the determi-

nation of the issue must have been essential to the judgment");

see also NLRB v. Donna-Lee
Sportswear
Co.,
Inc., 836 F.2d 31, 34

(1st Cir. 1987) (same).

2. Claim Preclusion

Gilday next contends that the 1984 consent decree

precludes the DOC defendants from claiming that the MITS does not

violate the Gilday injunction, because our decision in Langton v.

Hogan, 71 F.3d 930, 933-35 (1st Cir. 1995), involving a similar

Furthermore, a determination that the MITS violated the
Langton injunction with its materially different language and
discrete purpose, see infra, pp. 12-25 could not constitute a
determination that the
Gilday injunction, with its less restrictive
language and scope, see infra p. 25, had been violated.

11

injunction, held that the DOC was precluded from contesting the

meaning of the same state and federal wiretap statutes there

involved without first obtaining a court order modifying the

injunction. Once again we are unable to agree, as the Langton

panel decision is inapposite for several reasons.

First, although the parties to a consent decree are bound

by traditional preclusion principles and may not litigate claims

necessarily resolved by the decree, see id. at 933-34, the Gilday

injunction unlike the Langton injunction expressly provided

that reported decisions authoritatively construing the relevant

state and federal wiretap statutes (hereinafter: "authoritative

decisions") were to control their future construction for all

purposes material to the Gilday injunction. See supra pp. 3-4

("All [DOC agents] are enjoined permanently . . . from . . .

endeavoring to intercept . . . any wire communication by or to

[Gilday] . . . except as specifically permitted by these statutes

. . .
as
they have been construed or
may
be
construed
in [authori-

tative decisions]."). (Emphasis added.) Thus, the construction

suggested by Gilday would ignore language expressly limiting the

scope of the
Gilday injunction. See
Mackin v.
City of Boston
, 969

F.2d 1273, 1277 (1st Cir. 1992) (declining to construe consent

decree so as to "overlook[] the language of the decree itself").

See
also
United States
v.
ITT Continental Baking Co.
, 420 U.S. 223,

236-37 (1975) (construing consent decrees as contracts); System-

ized
of
New
England,
Inc. v. SCM,
Inc., 732 F.2d 1030, 1034 (1st

Cir. 1984) (noting that courts are to adopt constructions that

12

"give meaning and effect to every part of a contract and reject

those which reduce words to mere surplusage"). Accordingly, the

Gilday injunction did not preclude reliance on intervening authori-

tative decisions construing the state and federal wiretap statutes.

Instead, "construed as it is written," United
States v. Armour
&

Co., 402 U.S. 673, 682 (1971), the Gilday injunction, unlike the

Langton injunction, plainly envisioned their consideration.

Second, although the Langton panel majority concluded

that the DOC had relinquished any right to litigate the meaning of

these wiretap statutes as against the
Langton inmates,
see
Langton,

71 F.3d at 933-34, it did so because it believed those inmates

otherwise would have
gained
nothing
beyond a mere promise by the

DOC to obey the law:

The usually understood meaning of a Settlement
Stipulation is that each party is agreeing to
give up something to yield on one or more
reasonably plausible contentions of law, or
fact, or mixed-law-fact issues. "[T]he agree-
ment reached normally embodies a compromise;
in exchange for the saving of cost and elimi-
nation of risk, the parties each give up
something they might have won had they pro-
ceeded with the litigation." When making an
agreement for a consent decree, the parties to
a case are agreeing not to press any of their
disputes to decision in court. The parties
forego "their right to litigate issues in-
volved in the case and thus save themselves
the time, expense and inevitable risk of liti-
gation."

The Langton injunction prohibited the DOC defendants from
intercepting inmate wire communications except as specifically
permitted by the federal and state wiretap statutes "as they have
been
construed in reported decisions that
are binding on this court
or in the state courts of Massachusetts." Langton, 71 F.3d at 931
(emphasis added).

13

Id. (quoting Armour
&
Co., 402 U.S. at 681) (internal citation

omitted).

On the other hand, in the present case the consent decree

secured Gilday a substantial independent benefit unavailable to the

Langton plaintiffs. As the district court recognized, Gilday had

alleged in his 1974 action against the DOC that he was the target

of two secret federal and state law enforcement efforts, directed

by the FBI and code-named "STOP" and "GILROB," aimed at gathering

information about his as-yet unapprehended accomplices in the

Brighton bank robbery. See supra p. 3. In securing the 1984

consent decree, therefore, Gilday obtained permanent injunctive

relief from any DOC participation in current or future wire-

communication interceptions unlawfully directed against him by

these state and federal law enforcement agencies consideration

unavailable to the
Langton litigants. Accordingly, notwithstanding

that the
Gilday consent decree permitted the DOC to litigate future

unresolved issues relating to the meaning of the applicable wiretap

statutes, Gilday obtained substantial consideration for entering

into the settlement with the DOC. Thus, the Langton panel

majority's concerns over a lack of meaningful consideration for the

Langton plaintiffs' consent are not implicated to the same degree

in the present context.

Finally, the Langton and Gilday cases presented

themselves in materially different ways on appeal. The Langton

panel was asked to review, inter alia, a district court ruling

denying a DOC petition to modify the Langton injunction. See id.

14

at 931. On appeal, the DOC claimed that the district court had

broadened the injunction impermissibly in favor of the Langton

inmates. Id. at 933. The Langton panel majority first decided

that the parties had relinquished their respective rights to

litigate the meaning of the wiretap statutes underlying the

injunction, and then determined that no authoritative decision,

existing at the time the Langton injunction issued, specifically

supported the challenged MITS monitoring and recording practices.

Finally, the Langton majority went on to survey

subsequent decisional law, simply noting without resolving the

merits that "reasonable [competing] arguments can be advanced"

as to whether the challenged MITS monitoring and recording regime

violated the federal wiretap statute. Id. at 935-37; see
also
id.

at 940 ("Nor does the panel majority hold that the present regime

is unlawful under the federal and state statutes but only that

reasonable arguments can be made on both sides.") (Boudin, J.,

dissenting) (emphasis in original). Thus, the Langton majority

simply decided that the DOC had failed to carry its burden of

demonstrating any change in the law, or the facts, which would

warrant modification of the injunction. See id. at 937-38

(sustaining modification ruling as "appropriately tailored to the

only changes in law or in fact disclosed on the record before the

district court").

In the present case, on the other hand, Gilday alleges

DOC violations of an injunction which expressly contemplates that

authoritative decisions subsequent to the Gilday injunction may

15

determine whether a violation has occurred. See supra pp. 12-13.

Moreover, since the
Langton panel majority never reached the merits

regarding the lawfulness of the MITS regime under either wiretap

statute, see supra p. 15, we may consider afresh whether the

challenged MITS practices violate the
Gilday injunction. Finally,

we are required to review the district court's summary judgment

ruling against Gilday
de
novo. See
Velez-Gomez, 8 F.3d at 874-75.

For the foregoing reasons, we conclude that the DOC is

entitled to litigate the meaning of the applicable wiretap

statutes.

3. The Gilday Injunction

Gilday argues that the DOC defendants violated the
Gilday

injunction by endeavoring to monitor and record his wire communica-

tions in violation of the state and federal wiretap statutes. The

linchpin in this argument is that no authoritative decision

"specifically" construes either the federal or state wiretap

statute to "permit" the inmate-telephone system established under

the MITS. In other words, Gilday argues that the injunction is

violated absent an authoritative decision validating either the

MITS regime itself or substantially similar practices in a

comparable prison context. At its most particular level, this

contention would necessitate an authoritative decision declaring

the challenged MITS practices compatible with the applicable

wiretap statutes.

We test this contention against the language employed in

the Gilday injunction, viewed in its unique litigation context,

16

including the particular circumstances surrounding its formation

and the basic purposes it was designed to serve. See ITT

Continental
Baking
Co., 420 U.S. at 238 (construing ambiguous

language in consent decree in light of "the circumstances surround-

ing [its] . . . formation"); see also Massachusetts
Ass'n
for

Retarded
Citizens,
Inc. v. King, 668 F.2d 602, 607-08 (1st Cir.

1981) (construing consent decree in light of its language, the

circumstances surrounding its formation, and its basic purposes);

Cornelius v.
Hogan, 663 F.2d 330, 333 (1st Cir. 1981) (noting that

court construing ambiguous consent decree may "inquire into the

parties' intent and the circumstances surrounding the decree in

order to select the most reasonable interpretation").

As a preliminary matter it is necessary to note, however,

that no violation of the injunction can be found unless Gilday

first established an "interception," as defined under either the

federal or Massachusetts wiretap statute, based on "clear and

convincing evidence,"
Kemp, 947 F.2d at 16 (citation and quotation

marks omitted). See infra pp. 25-27, 29-30. Therefore, Gilday's

insistent contention on appeal
that
no MITS practice can ever be

allowed under the Gilday injunction unless it has been

"specifically permitted" beforehand by an authoritative decision

cannot succeed.

Moreover, even assuming Gilday were to demonstrate an

"interception," the injunction expressly excepts from its reach any

practice "specifically permitted" under the wiretap statutes as

construed in authoritative decisions, see supra pp. 3-4, and the

17

term "specifically permitted" is susceptible to various reasonable

interpretations. On the one hand, "specifically permitted" may be

read to require an authoritative decision that the MITS regime,
as

applied directly to Gilday, comports with the applicable wiretap

statutes. See Webster's
Third
New
International
Dictionary 2187

(1986) (noting that term "specific" may connote restriction "to a

particular individual"); see also Barnett
Bank
of
Marion
County,

N.A. v. Nelson,
U.S.
,
, 116 S. Ct. 1103, 1111 (1996)

(noting that "'[s]pecifically'
can mean 'explicitly, particularly,

[or] definitively'") (quoting
Black's Law Dictionary
1398 (6th ed.

1990) (emphasis added)). Under such a reading, an authoritative

decision would be unavailing to the DOC defendants unless it

explicitly addressed the MITS monitoring and recording of wire

communications involving Gilday. On the other hand, "specifically

permitted" may contemplate simply an authoritative decision

upholding interceptions involving some other DOC inmate or DOC

inmates in general. See
Webster's Third New International Dictio-

nary at 2187 (noting that "specific" may merely restrict to a

particular situation). Under these interpretations, therefore,

Gilday would need to demonstrate simply an absence of authoritative

decisions specifically permitting the challenged MITS practices as

applied directly to him or to similarly situated inmates. See

Ambiguity is the "condition of being understood in more than
one way." Webster's
Third
New
International
Dictionary 2187
(1966);
see
also William Empson,
Seven Types of Ambiguity
1 (2d ed.
1966) (defining ambiguity as "any verbal nuance, however slight,
which gives room for alternative reactions to the same piece of
language").

18

Langton, 71 F.3d at 935-37 (noting no reported decision "holding

that this type of prison telephone monitoring system" meets

"consent" exception to federal wiretap statute).

Alternatively, at a more universal level, "specifically

permitted" may simply contemplate an authoritative decision

upholding the general types or kinds of monitoring and recording

practices prescribed by the MITS, without regard to whether the

practices were employed in a prison context. See 2
The
Oxford

English Dictionary
2949 (Compact Ed. 1987) (defining "specifically"

as "[i]n something of the same kind"); see also Webster's
Third

New
International
Dictionary at 2187 (defining "specific" as

"constituting or falling into the category specified"); Webster's

New
World
Dictionary
of
American
English 1287 (3d ed. 1988)

(defining "specific" as being "of a special, or particular, sort or

kind"); Webster's
Ninth
New
Collegiate
Dictionary 1132 (1989)

(defining "specific" as "sharing or being those properties of

something that allow it to be referred to a particular category").

Under the latter interpretation, of course, Gilday would need to

demonstrate an absence of authoritative decisions vindicating the

kinds of practices utilized under the MITS, without necessary

regard to the exact context in which the practices were applied,

thereby implicating any relevant authoritative decision addressing

the applicable wiretap statutes. Thus, under the latter

interpretation only
unlawful MITS practices would be barred by the

19

Gilday injunction.

Ambiguities in an injunctive decree are construed in the

light most favorable to the alleged contemnor. See
Kemp, 947 F.2d

at 16; NBA
Properties, 895 F.2d at 32; see also United
States v.

O'Quinn, 913 F.2d 221, 222 (5th Cir. 1990); In re Baldwin-United

Corp., 770 F.2d 328, 339 (2d Cir. 1985); New
York
Tel.
Co. v.

Communication Workers of America, 445 F.2d 39, 48 (2d Cir. 1971);

Ford, 450 F.2d at 280; 11 C. Wright and A. Miller, Federal

Practice
&
Procedure:
Civil S 2955, at 310 (1995 & Supp. 1996)

(same). For present purposes, therefore, the Gilday injunction

would be construed as banning only unlawful interceptions.

The litigation context underlying the Gilday consent

decree likewise commends the latter construction. See ITT

Continental
Baking
Co., 420 U.S. at 238 (construing ambiguous

consent-decree language in light of "circumstances surrounding

[its] formation . . .");
see
also
King, 668 F.2d at 607 (similar).

Throughout the district court action terminated by the consent

decree, the DOC defendants steadfastly denied "monitoring,"

The latter construction is strongly suggested by other
language in the Gilday consent decree itself, which explicitly
links its injunctive ban to the relevant federal and state wiretap
statutes, thereby indicating that the ban was not meant to prohibit
conduct lawful under the wiretap statutes themselves either
because the practice in question did not constitute an
"interception" or it constituted a lawful "interception" as
construed in authoritative decisions, extant or forthcoming. See
Armour & Co.
,
402 U.S. at 678-80 (construing particular provisions
in light of other language in decree); Brewster v. Dukakis, 687
F.2d 495, 499 (1st Cir. 1982) (construing consent decree provision
in relation to other language in decree);

United
States
v.
City of
Miami, 2 F.3d 1497, 1507-08 (11th Cir. 1993) (construing "consent
decree as a whole").

20

"recording," or "intercepting" any wire communication involving

Gilday. Thus, implicit in the stance taken by Gilday now is the

suggestion that the DOC defendants impliedly conceded prior

violations of the relevant wiretap statutes simply by entering into

the stipulation of dismissal, whereas the record flatly contradicts

any such concession. Instead, the stipulation of dismissal

substantiates the view that the DOC defendants simply agreed to an

injunction which required their compliance with the applicable

federal and state law governing "interceptions."

Viewed in context, therefore, the Gilday consent decree

entailing no resolution of the central dispute as to whether the

DOC defendants ever "monitored" or "recorded," let alone "inter-

cepted," any Gilday wire communication is most harmoniously

construed as an agreement that the DOC defendants were to refrain

from any "interception" violative of either wiretap statute, as

The stipulation of dismissal stated:

By entering into this stipulation, these
[signatory] defendants do not admit, but rath-
er, generally deny that they have ever violat-
ed the plaintiff's rights under . . . the
federal wiretapping statute, 18 U.S.C. S 2150
et seq., [and] the state wiretapping statute,
M.G.L. c. 272, SS 99 et seq. . . . as alleged
by the plaintiff. The
defendants
specifically
deny that any of them, or anyone acting in
concert with any of them, ever intercepted or
monitored
any
of
the
plaintiff's
wire
communi-
cations
by
any
means,
lawful
or
unlawful . . .
.

See Settlement Stipulation: Claims Against Defendants Fair, Vose,
Hall and Callahan, Gilday v. Fair, et al., Civ. A. No. 74-4169-C
(emphasis added).

21

determined under
either
existing
or
future authoritative decisions.

That is to say, the Gilday consent decree bans only unlawful DOC

monitoring and recording practices. See Settlement Stipulation:

Claims Against Defendants Fair, Vose, Hall and Callahan,
Gilday v.

Fair, et al., Civ. A. No. 74-4169-C, discussed supra pp. 20-21 &

n.12; see also supra pp. 3-4.

The suggested construction comports with the Langton

panel majority opinion as well, which held that the
Langton injunc-

tion banned any "interception" absent "a specific court order or

legislative authorization to do so, except as specifically

permitted by these statutes, . . . as they have been construed in

reported decisions that are binding in this Court or in the state

courts of Massachusetts." Langton, 71 F.3d at 931 (emphasis

added). Thus, the Langton panel majority reasoned that the consent

decree was to be construed as requiring the DOC defendants to

refrain,
in
perpetuity,
from
contesting
the
meaning
of
the
relevant

state and federal wiretap statutes "as construed in reported

decisions that [were] binding in [the federal district court] or in

the state courts of Massachusetts" at the time the Langton

injunction was entered, see id. at 931, 933-35, as distinguished

from merely requiring the DOC defendants to refrain from unlawful

interceptions. As the Langton panel majority viewed the matter,

any other approach threatened to render the terms of the Langton

injunction "illusory stating nothing beyond what was already

forbidden by law
before
the
Permanent
Injunction
was
entered." Id.

at 933 (emphasis added); but see id. at 940 (Boudin, J., dissent-

22

ing); see also supra pp. 13-14.

The panel majority relied as well on the final section in

the
Langton injunction, which stated in terms similar to the
Gilday

injunction, see supra p. 4, that the injunction "shall not of its

own force affect the rights of inmates of the Department other than

William Langton and David LeBlanc." See Langton, 71 F.3d at 933.

It reasoned that had the DOC promised merely to obey the law, no

purpose would have been served by the quoted provision. See id.

Once again, however, the two cases presented themselves

on appeal in materially different postures. First, as discussed

supra pp. 14-16, the repeated observation by the Langton panel

majority, see Langton, 71 F.3d at 933-37 that no then-existing

authoritative decision specifically permitted the challenged MITS

practices and that the
Langton decree would be rendered meaningless

were it to be construed as a mere promise to obey the law is

inapposite to the instant context. That is, central to the present

analysis is the explicit language in the
Gilday injunction ("or
may

be construed in reported decisions"), see supra p. 4 (emphasis

added) nowhere to be found in the Langton injunction, see 71

F.3d at 931 which in no sense purports to prohibit either (i)

these parties from litigating open questions as to the meaning of

the applicable wiretap statutes, or (ii) our consideration of later

authoritative decisions upholding monitoring and recording

practices of the kind prescribed by the MITS,
see
infra pp. 45-48.

Second, since the settlement stipulation and the consent decree in

Gilday were entered into while the parties in Langton were still

23

litigating the initial action which led to the
Langton injunction,

paragraph 3 in the Gilday injunction ( viz., "[t]his Permanent

Injunction . . . shall not . . . affect the rights of inmates other

than William Gilday[,]") served the discrete purpose of not

disturbing the rights of the Langton inmates whose initial action

against the DOC was to remain in litigation for two months after

the consent decree was entered in Gilday.

Accordingly, unlike the corresponding provision in the

Langton injunction, paragraph 3 in the Gilday injunction is

entirely consistent with the view that the
Gilday injunction simply

contemplates that the DOC not violate the applicable wiretap

statutes. For these reasons we conclude, notwithstanding their

similarities, that the Gilday injunction is substantially less

restrictive in scope than the Langton injunction, in that it

unambiguously enjoins only unlawful recording and monitoring

practices by the DOC.

The
Gilday injunction was entered on September 12, 1984; the
Langton injunction, on November 16, 1984.

It is noteworthy as well that the complaint in the action
which gave rise to the Gilday injunction alleged that Gilday "has
never consented, nor upon information and belief has any person
with whom he communicated consented, that wire communications to or
from him be intercepted or monitored in any way." Second Amended
Complaint, Gilday v. Webster,
et
al., No. 74-4169-C. The Gilday
complaint in the present action indicates that his concern in the
former action was not with all interceptions of his telephone
calls, however, but only with interceptions unlawful under the
applicable wiretap statutes because allegedly conducted without the
requisite consent. Thus, the more narrow concern reflected in the
present complaint comports with the view that the Gilday settlement
stipulation and consent decree were meant to ban only unlawful
interceptions.

24

A. The Massachusetts Wiretap Act

We must now consider whether Gilday demonstrated by

"clear and convincing evidence," Kemp, 947 F.2d at 16, that the

challenged MITS practices constitute unlawful interceptions under

the applicable wiretap statutes, beginning with the Massachusetts

Wiretap Act, bearing in mind that it was for Gilday to show that

the DOC defendants "violated a clear and unambiguous order that

left no reasonable doubt as to what behavior was to be expected"

and that the defendants were "'able to ascertain from the four

corners of the order precisely what acts are forbidden.'" Id. at

17 (quoting Drywall
Tapers, 889 F.2d at 395). First, we inquire

whether the monitoring, recording, and call "detailing" practices

prescribed by the MITS Regulations are "interceptions" under the

Massachusetts Wiretap Act, Mass. Gen. L. ch. 272, S 99(B)(4).

Second, should Gilday successfully surmount the first hurdle, we

determine whether any such interpretation is nevertheless permitted

under any authoritative decision binding on the federal district

court. Finally, we conclude that Gilday failed to prove either

that the monitoring and recording practices conducted pursuant to

the MITS constitute "interceptions" under the Massachusetts Wiretap

Act, or that the MITS call "detailing" practices were clearly

prohibited under the Gilday injunction.

1. Monitoring and Recording

We begin by noting that the Gilday injunction prohibits

only "interceptions" under the applicable statutes and not call

monitoring, recording, or "detailing"
per
se. The term "intercep-

25

tion," as used in the Massachusetts Wiretap Act, "means to
secretly

hear,
secretly record, or aid another to
secretly hear or
secretly

record, the contents of any wire or oral communication through the

use of any intercepting device . . . ." Mass. Gen. L. ch. 272, S

99(B)(4) (emphasis added).

The Massachusetts courts have interpreted this "secrecy"

requirement literally. See Commonwealth v. Jackson, 349 N.E.2d

337, 339-40 (Mass. 1976) (holding that secrecy is essential to

establishing a violation of Massachusetts Wiretap Act); see also

District Attorney v. New England Tel. & Tel. Co., 399 N.E.2d 866,

869 (Mass. 1980) (stating that
secret recordation of incoming calls

violates Massachusetts Wiretap Act). A secretive interception

occurs under the Massachusetts Wiretap Act unless both parties to

a wire "communication" had "actual knowledge" of the

"interception,"
see,
e.g.,
Jackson, 349 N.E.2d at 340, which may be

established by evidence that the parties were informed that their

conversation was being intercepted, or by "clear and unequivocal

objective manifestations of knowledge . . . sufficiently probative

of a person's state of mind as to allow an inference of knowledge."

Id.

As the district court correctly concluded, the recording

and monitoring practices at issue here were in no sense

surreptitious. Inmates are informed in advance, both by the MITS

Regulations
a matter of public record
and the individualized

PIN Request Form advisory as well, that their MITS calls will be

monitored and recorded. Moreover, inmates are reminded by stickers

26

affixed to each phone that all non-attorney calls are subject to

the monitoring and recording practices prescribed by the MITS

Regulations. Finally, a prerecorded message informs both parties

before the parties can communicate that all call "contents"

will be recorded.

Against this backdrop, the Massachusetts Supreme Judicial

Court ("SJC") has decided that even inmates who "have not consented

to the [MITS] monitoring and recording" such as Gilday

nonetheless have been "made aware of the procedure and its require-

ments." Cacicio v. Secretary of Public Safety, 665 N.E.2d 85, 91

(Mass. 1996) (rejecting constitutional challenge to MITS

Regulations). Therefore, the SJC held, "[t]he [MITS] monitoring

and recording is not surreptitious in any sense." Id.

Accordingly, we now hold that whatever recording and

monitoring of oral communications takes place under the MITS regime

does not constitute an "interception" under the Massachusetts

Wiretap Act, as it is not secretly conducted. See Jackson, 349

N.E.2d at 339 (non-secret recordings not "interceptions" under

Massachusetts Wiretap Act).

2. Call "Detailing"

The Massachusetts Wiretap Act defines the term

"interception" as a secret acquisition of "the contents of any wire

The SJC did not differentiate between recording of contents
and recording of billing-related features ( i.e., "detailing").
Instead,
Cacicio simply described the prerecorded message as notice
to the inmate and the person called that the call would be recorded
in its entirety. See Cacicio, 665 N.E.2d at 88.

27

or oral communication
through
the
use
of
any
intercepting
device .

. . ." Mass. Gen. L. ch. 272, S 99(B)(4) (emphasis added).

Elsewhere the statute explicitly excepts certain telephone

equipment from its definition of "intercepting device":

The term "intercepting device" means any
device or apparatus which is capable of . . .
recording a wire or oral communication . . .
other than any telephone or telegraph
instrument, equipment, facility, or a
component thereof . . . being used by a
communications common carrier in the ordinary
course of its business.

Mass. Gen. L. ch. 272, S 99(B)(3)(b). Thus, no "interception"

occurs under the Massachusetts Wiretap Act if the device used to

acquire the contents of a wire communication comes within the ambit

of the "telephone equipment" exception.

The MITS employs a sophisticated network of computers and

associated telephone equipment, including "controller boards"

electronic call processing devices attached to each prison

telephone
supplied, installed, and maintained by NET. The NET

equipment automatically screens approved outside telephone numbers

from unapproved numbers, routes inmate calls to approved telephone

numbers outside the prison, plays the prerecorded message to both

parties, and identifies calls placed to listed attorneys so as to

The SJC has held that a device which records information
relating to the identity of the parties to a call or the existence
of a wire communication, records the "contents of [a] wire . . .
communication." District
Attorney
for
Plymouth
Dist. v. New
England
Tel.
&
Tel.
Co., 399 N.E.2d 866 (Mass. 1980), discussed
infra pp. 33-35.

NET procures the telephone equipment from AT&T and Telematic
Corporation under various subcontracts.

28

preclude their monitoring and recordation. All call "detail" is

recorded automatically by the NET telephone equipment in order to

generate billing reports and safeguard the NET equipment against

fraudulent use by inmates ( i.e., inter alia, unapproved long

distance and collect calls).

The monthly revenue statements NET provides under its

contract with the DOC reflect "detail" on all inmate calls placed,

including the number dialed, the length of the call, and other

billing-related and revenue-related information. In addition, the

NET site administrator at each prison facility regularly generates

a so-called "Fraud Report," listing all outside telephone numbers

to which the total number of calls placed by inmates within the

reporting period exceeded a specified level. The Fraud Report is

forwarded to NET and the DOC for use in investigating fraudulent

telephone usage.

The MITS is similar to the telephone systems utilized by the
Bureau of Prisons, as well as in certain state prisons such as New
York and Tennessee. See Bender Aff. q 6. However, the MITS
utilizes devices far more sophisticated than the "in-house" devices
generally considered by this court or the Massachusetts courts.
See,
e.g.,
Williams v.
Poulos, 11 F.3d 271, 275-76 (1st Cir. 1993)
(involving "custom made" system consisting of "small alligator
clips" and a VCR attached to a microphone cable); Griggs-Ryan v.
Smith, 904 F.2d 112, 114 (1st Cir. 1990) (involving recording
device attached by landlady to extension telephone); Jackson, 349
N.E.2d at 338 (involving cassette recorder microphone attached to
earpiece in telephone receiver).

Among the abuses the MITS is designed to stop are so-called
"third-party" calls placed by inmates to large outside
establishments through which the inmate can request another
outside
line, then place a long-distance call at the expense of the
establishment whose number the inmate called in the first instance.
See, e.g., supra note 4.

29

Within the above-described evidentiary framework, we now

inquire whether the MITS call "detailing" conducted by NET is

excepted from the Massachusetts Wiretap Act definition of

"intercepting device" in S 99(B)(3)(b). See supra pp. 28-29.

First, we note that NET is a "communication common carrier" within

the contemplation of S 99(B)(3). See District
Attorney
For

Plymouth
Dist. v. Coffey, 434 N.E.2d 1276, 1280 (Mass. 1982).

Second, Gilday does not contend that the processor computers and

controller boards used by NET for billing-related purposes are not

"equipment . . . being used in the ordinary course of [NET's]

business." See Reply Brief for the Plaintiff, Appellant at 6 n.8

("Gilday does not argue that NET is precluded from using call

detail for billing purposes."). Nor does any authoritative

decision suggest that a communication common carrier which

"details" calls in order to generate billing reports or protect its

equipment from fraudulent abuse, does not do so in the ordinary

course of its business. Thus, Gilday has not demonstrated by

"clear and convincing" evidence,
see
Kemp, 947 F.2d at 16, that any

We have construed the Federal Wiretap Act, which the
Massachusetts statute tracked, see Commonwealth v. Vitello, 327
N.E.2d 819, 836 (1975), as conferring a "statutory right" upon a
communication common carrier to intercept wire communications in
order to protect its rights and property interests. United States
v.
Pervaz, --- F.3d ---, ---, 1997 WL 336208, *5 (1st Cir.) (R.I.)
(construing 18 U.S.C. S 2511(2)(a)(i), which permits an employee of
a wire communication services provider whose facilities are used in
transmission of wire or electronic communication, "to intercept,
disclose, or use that communication in the normal course of his
employment while engaged in any activity which is a necessary
incident to the rendition of his service or to the protection of
the rights or property of the provider of that service").

30

call "detailing" conducted by NET for its own billing-related

purposes falls outside the S 99(B)(3)(b) exception for equipment

used by it "in the ordinary course of its business." Accordingly,

no "interception" occurs under the Massachusetts Wiretap Act, at

least by reason of the billing-related "detailing" conducted by

NET.

Gilday nonetheless insists, however, that the injunction

precludes the DOC defendants from acquiring access to any call

"detail" information and that NET therefore may not aid and abet

the DOC by affording access. See Reply Brief for Plaintiff,

Appellant at 6 n.8. Under the Regulations and the MITS "Procedural

Statement"
a DOC operations guideline which supplements the MITS

Regulations
authorized DOC officers may request both "standard"

and "custom" call "detail" reports from NET personnel for

investigative
purposes, or, after receiving training from NET

personnel, print out such call "detail" reports themselves.

Moreover, these "standard" reports may, at the DOC's option, be

configured to provide call "detail" relating to an individual

inmate's PIN, a particular group of inmate PINs, specific prison

telephones used to place calls, or particular telephone numbers

dialed. Finally, since the record discloses no limitation on the

domain reserved for the so-called "custom" reports, we assume, at

Although the record is unclear as to what, if any, role AT&T
as NET's subcontractor performs in call "detailing," our
analysis of the NET role in call "detailing," supra pp. 27-30,
appears equally applicable to AT&T, which is a communication common
carrier as well. See Mass. Gen. L. ch. 272, S 99(B)(3)(b).

31

the summary judgment stage,
see
Velez-Gomez, 8 F.3d at 874-75, that

NET is obligated to provide the DOC with any and all call "detail"

requested. Notwithstanding its advantageous summary judgment

posture, however, the Gilday call "detailing" claim fails in

relation to the DOC defendants as well.

Gilday claims that the DOC violates the injunctive ban

against "intercepting" or "endeavoring to intercept" his wire

communications, see supra pp. 3-4, simply by applying the MITS

requirements to him; in particular, by making his consent a

prerequisite to utilizing the MITS. The claim is premised on

several rationales: first, the MITS requirements cannot be applied

to
him, since the
Gilday injunction bans all "interceptions" of his

calls, absent a relevant court order, legislative authorization, or

authoritative decision specifically permitting the challenged MITS

practices in their prison context; second, since he has never

consented to the MITS regime, DOC call "detailing" cannot meet the

"two party consent exception" under Mass. Gen. L. ch. 272, S

99(B)(4), even assuming consent by the party called; and third,

even assuming he were found to have given implicit consent by

utilizing the MITS, the injunctive ban on "interceptions" is

infringed by DOC call "detailing," because it secretly records the

outside number dialed by the inmate before the other party can

Section 99(B)(4) provides, in pertinent part, that the "term
interception means to secretly hear, secretly record, or aid
another to secretly hear or secretly record the contents of any
wire or oral communication . . . by any person other than a person
given prior authority by all parties to such communication." Mass.
Gen. L. ch. 272, S 99(B)(4).

32

consent; for example, should the outside phone not be answered.

All these contentions likewise fail.

As with monitoring and recording, see supra pp. 25-27,

virtually all call "detailing" conducted under the MITS regime is

thoroughly advertised. In addition to the MITS Regulations, the

"Number Request Form" itself discloses that all inmate calls are

subject to call "detailing." Moreover, the recorded message heard

both by the inmate and the call recipient advises that their entire

conversation and all "call detail" will be recorded. Thus,

whatever "detailing" occurs
after the call recipient is so advised

by the recorded message comports with the Massachusetts Wiretap

Act, as both parties have been fully informed in advance that their

entire oral communication, as well as all "call detail," will be

recorded. See Jackson, 349 N.E.2d at 339 (non-secret recordings

not "interceptions" under Massachusetts Wiretap Act).

At summary judgment, however, Gilday proffered unrebutted

evidence that the outside number dialed by the inmate is recorded

before the call is answered; in other words, before the prerecorded

message announcing the MITS monitoring/recording regime has been

heard by the party who answers the call. Thus, the number called

by the inmate will have been subjected to call "detailing," whether

or not the party called answers the phone or withholds "consent" to

the MITS recording and call "detailing" procedure subsequently

announced in the prerecorded message. Gilday therefore contends

On appeal, AT&T vigorously disputes that any such "secret"
call detailing occurs in these circumstances. Nevertheless, none

33

that defendants violate the injunction by "endeavoring" to record

call "detail" during the
interim between the dialing of the outside

number by the inmate and before the call can be answered and

accepted what we shall refer to as "interim call detailing."

Gilday relies heavily on a line of SJC decisions, see,

e.g., District
Attorney
for
Plymouth
Dist. v. New
England
Tel.
&

Tel.
Co., 399 N.E.2d 866 (Mass. 1980), treating with "pen

registers" and "call traps," telephone equipment consisting of

electronic devices which surreptitiously record, respectively, the

number called or the number from which an incoming call was placed.

These authoritative decisions hold that such electronic devices do

record call "contents," within the meaning of the Massachusetts

Wiretap Act, since they acquire "'information concerning the

identity of the parties to such communication or the existence . .

. of that communication.'" Id. at 869 (quoting Mass. Gen. L. ch.

272, S 99(B)(5)). Thus, "[e]ven if the call is not completed, the

caller has initiated a wire communication . . . which is intended

to cause . . . [the call recipient's] telephone to ring and the

existence of that communication is recorded by an intercepting

of the defendants challenged Gilday's proffer in their opposition
to summary judgment, as required by Mass. D. Ct. Local Rule 56:

Material facts of record set forth in the
statement required to be served by the moving
party will be deemed for purposes of the
motion to be admitted by opposing parties
unless controverted by the statement required
to be served by opposing parties.

Consequently, we credit Gilday's assertion for summary judgment
purposes. See Carreiro v. Rhodes Gill & Co., Ltd., 68 F.3d 1443,
1446 & n.3 (1st Cir. 1995).

34

device." Id. Be this as it may, however, it gains Gilday nothing.

First of all, it is important to note that the SJC's

definition of "wire communication,"
see
id., would not encompass an

attempt by an inmate to call a number not on the preapproved MITS

list, since the MITS regime automatically prevents such calls from

getting past its "host processors," the computers which control the

outflow of inmate calls from the prison. Consequently, inmate

attempts to dial numbers not approved under the MITS regime cannot

cause an outside telephone to ring, because the call cannot be

connected to the point of reception. Accordingly, there can have

been no "wire communication," which is defined as "any

communication . . . by the aid of wire, cable or other like

connection
between
the
point
of
origin
and
the
point
of
reception."

Mass. Gen. L. ch. 272, S 99(B)(1). (Emphasis added.) Second,

should an inmate initiate a call through the MITS regime, he will

already have completed the "Number Request Form," thereby
divulging

in advance to the DOC the very entity which previously

advertised its intention to monitor and record all outgoing inmate

calls to nonattorneys
both
the
telephone
number
and
the
name
and

relationship of the family member or friend to whom the call is

directed. See supra p. 6. Third, no reported Massachusetts

decision has ever involved sufficiently similar circumstances so as

to constitute an authoritative decision that call "detailing" in

the present context is unlawful.
Cf.,
e.g.,
Jackson, 349 N.E.2d at

338-40 (discussing residential telephone subscriber's interceptions

of incoming calls to ascertain calling number and identity of

35

unknown caller); District Attorney For Plymouth Dist., 399 N.E.2d

at 867, 869-70 (discussing judicial power to compel telephone

company, pursuant to warrant, to assist installation of cross-

frame-unit trap on particular telephone line in order to record

telephone numbers from which incoming calls were made in

circumstances where callers' numbers and identities had
not already

been divulged by callers in advance); New England Tel. & Tel. Co.

v.
District Attorney For Norfolk Dist.
, 373 N.E.2d 960, 962 (Mass.

1978) (discussing judicial power to order telephone company to

assist installation of pen register to determine telephone numbers

dialed from particular phone);
District Attorney For Plymouth Dist.

v. Coffey, 434 N.E.2d 1276, 1278 (Mass. 1982) (discussing

warrantless interception by telephone company of calls to

residential line to ascertain previously unknown telephone numbers

from which incoming, harassing telephone calls were being made).

Furthermore, Gilday has never alleged an intention to

call a telephone number or party not listed by him on the required

MITS "Number Request Form," see supra p. 6, even assuming he were

to elect to utilize the MITS. Instead, since there can be no

secretive acquisition of information already provided to the DOC,

see
supra pp. 25-27 (noting that "secretive" interceptions presume

lack of knowledge), Gilday simply assumes, sub silentio, that any

putative number(s) and person(s) he might call would not already

In another case, the SJC declined to address a claim that the
MITS violates the Massachusetts Wiretap Act, as it had not been
raised below. See Cacicio, 665 N.E.2d at 89 n.9.

36

have been known to the DOC before the call was placed. Absent

evidence on this critical point, however, there can have been no

prima facie showing that any surreptitious or secretive

"interception" would occur, let alone did occur, within the meaning

of the Massachusetts Wiretap Act. See Jackson, 349 N.E.2d at 340

(holding that a secretive "interception" has occurred unless both

parties to the call had "actual knowledge" of the intrusion). In

all events, as noted above, see supra pp. 34-35, were Gilday to

continue to withhold consent but attempt to place a call or

consent, yet attempt to call a number not previously approved by

the DOC
the MITS computers would screen out the attempted call.

Thus, under Massachusetts law, no "wire communication" could occur.

See Mass. Gen. L. ch. 272, S 99(B)(1) (defining "wire

communication" as any "connection between the point of origin and

the point of reception") (emphasis added); see also District

Attorney
for
Plymouth
Dist. v. New
England
Tel.
&
Tel.
Co., 399

N.E.2d 866, 869 (Mass. 1980).

Although Gilday argues on appeal that interim call
"detailing" would violate the Massachusetts Wiretap Act because it
would record inmate attempts to call telephone numbers not listed
on their respective Number Request Forms i.e., that MITS call
"detailing" takes place even though the inmate calls a party not on
the Number Request Form, hence not already known to the DOC he
has never alleged an intention to make such calls i.e., to
circumvent the requirements of the MITS
even assuming he were to
participate in it. Thus, the present attempt to hypothesize an
abstract interim call "detailing" violation raises no justiciable
case or controversy, as the injunction simply prohibits the DOC
from intercepting or endeavoring to intercept any wire
communication by Gilday. See Pacific
Gas
&
Elec.
Co. v. State
Energy
Resources
Conservation
and
Dev.
Comm'n, 461 U.S. 190, 203
(1983) (declining on Article III ripeness grounds to consider
constitutionality of California law allowing State to block

37

In conclusion, any attempt to dial a number not

previously disclosed by an inmate on the Number Request Form: (i)

results in no "wire communication" to the person called, as it

cannot proceed beyond the prison, see supra p. 34-35; and (ii)

voluntarily discloses to the DOC the number called, without any

"wire communication" having taken place. Thus, interim call

"detailing" under the MITS regime is neither "secretive" within the

meaning of the Massachusetts Wiretap Act, nor an "interception"

within the scope of the Gilday injunction. Accordingly, the

district court supportably determined that the challenged MITS

practices did not violate the Massachusetts-law component in the

Gilday injunction.

Moreover, there is no basis for the conclusory contention

that the Gilday injunction is violated simply by the MITS

regulatory requirement that he, like any other inmate, consent to

the MITS regime, including call "detailing," as a prerequisite to

utilizing the MITS hence, that the consent requirement

constitutes a coercive endeavor to intercept Gilday's wire

communications in violation of the injunction. See supra pp. 31-

32. First, its unstated premise that Gilday is entitled to utilize

prison phones even though he withholds consent is groundless. As

a prison inmate, Gilday can identify no federal or state right

construction of nuclear power plants lacking adequate storage
capacity for spent nuclear fuel, because the Court "cannot know" if
State "will ever find a nuclear plant's storage capacity to be
inadequate"); Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847-48
(1st Cir. 1990) (refusing on Article III ripeness grounds to
address claim based on abstract injury "that may not occur as
anticipated or may not occur at all").

38

constitutional or otherwise
to utilize a prison phone on his own

terms. See,
e.g.,
Washington v.
Reno, 35 F.3d 1093, 1100 (6th Cir.

1994) (stating that "a prisoner's right to telephone access is

'subject to rational limitations in the face of legitimate security

interests of the penal institution'") (quoting Strandberg v. City

of Helena, 791 F.2d 741, 747 (9th Cir. 1986))); see also Feely v.

Sampson, 570 F.2d 364, 374 (1st Cir. 1978) (stating that the right

of pretrial detainees to make telephone calls, while "not free from

doubt[,]" is subject to reasonable restrictions); Cacicio, 665

N.E.2d at 92 (upholding MITS limitations on inmate telephone access

as constitutional, and citing Bellamy v. McMickens, 692 F.Supp.

205, 214 (S.D.N.Y. 1988), for the proposition that prisoners have

no right to unrestricted telephone use). Second, the Gilday

injunction does not purport to ban call "detailing" lawfully

conducted under federal and state law. See
supra pps. 3-4, 20-25.

And since MITS call "detailing" cannot occur absent inmate consent

a prerequisite to access to the MITS, see supra pp. 6-7 the

very least that can be said is that there is no clearly-defined,

see Kemp, 947 F.2d at 17, "interception" under either federal or

state law, see supra pp. 34-37; infra pp. 45-48. Third, the verb

"endeavor," meaning "to work with set purpose," or "make an effort"

to accomplish a particular purpose, see Webster's
Third
New

International Dictionary
748 (1986)
here, allegedly, to conduct

unlawful interceptions of Gilday's wire communications cannot

bear the weight he places on it. Given the uncontroverted evidence

that extensive inmate fraud and criminal activity necessitated the

39

MITS, see supra p. 4, Gilday cannot demonstrate that the

establishment of the MITS universally available exclusively to

inmates
who
consent
to
its
terms (
including
Gilday, should he elect

to participate) constituted an "endeavor" to "detail" Gilday's

telephone calls unlawfully, and thus constituted a clear violation

of the Gilday injunction, see Kemp, 947 F.2d at 17.

Once again we emphasize the obvious simply because it is

so consistently elided by Gilday, both below and on appeal: The

Gilday injunction grants Gilday
no
right
or
privilege
to
place
any

telephone call, nor has Gilday cited any authoritative decision

indicating that conditioning prison-telephone utilization on

informed prisoner consent to reasonable prison-security safeguards

violates a federal or state right. See Langton, 71 F.3d at 936

(stating: "at the least, grounds exist for genuine dispute" about

whether DOC "defendants are authorized by law" to require prisoner

consent to MITS regime) (citing
Griggs-Ryan v.
Smith, 904 F.2d 112

(1st Cir. 1990) (holding that "implied consent" is inferred from

circumstances indicating that party knowingly agreed to

surveillance)); see also Washington, 35 F.3d at 1100 (prison may

impose rational limits on inmate telephone access, including

subjecting inmates to MITS-type system); Strandberg, 791 F.2d at

747 (prisoner's right to telephone access subject to reasonable

restrictions);
Feely, 570 F.2d at 374 (right of pretrial detainees

to place telephone calls is subject to reasonable restrictions);

Cacicio, 665 N.E.2d at 90 (upholding MITS as reasonable security

measure). But
cf.
United States
v.
Cheely, 814 F.Supp. 1430, 1443-

40

44 (D. Alaska 1992) (rejecting argument that prison may deem

consent implied in situations where inmate must consent to terms in

order to place calls, but finding surveillance of prison phones "a

necessary price for prison security"), aff'd, 36 F.3d 1439 (9th

Cir. 1994).

In sum, the
Gilday injunction does not purport to entitle

Gilday to utilize the MITS without acceding to lawful restrictions

founded upon reasonable prison-security measures. Furthermore,

inmates who voluntarily withhold their consent retain their

constitutional right to communicate with their attorneys (and with

family and friends) through prison visitations and the mail. Thus,

it is unfounded supposition to suggest that the DOC has

"endeavored" to do anything other than afford inmates the

opportunity to utilize the MITS, subject to reasonable restrictions

designed to preclude fraud, crime, and misuse of the prison

telephone system. Accordingly, the claim that the DOC is

"endeavoring" to "detail" Gilday's telephone calls in violation of

the Gilday injunction fails.

We note that the Gilday call "detailing" contention is
problematic in another important respect, since Mass. Gen. L. ch.
272, S 99(B)(3)(a), excepts from its definition of the term
"intercepting device" any device or apparatus "furnished to a
subscriber or user by a communications common carrier in the
ordinary course of its business under its tariff and being used by
the subscriber or user in the ordinary course of its business."
The SJC has indicated that institutional efforts to ensure security
constitute activities in the "ordinary course of business" for S
99(B)(3)(a) purposes. See
Crosland v.
Horgan, 516 N.E.2d 147, 150
(Mass. 1987) (stating that preservation of security may be viewed
as within hospital's "ordinary course of business"). Similarly,
the SJC has stated that maintenance of security is "an essential
incident to the business of a prison." Id. (dicta) (describing

41

Finally, even assuming, arguendo, that Gilday were to

overcome all other hurdles, in fine his call "detailing" claim

engenders substantial justiciability concerns not addressed by the

parties. Article III, section 2, of the United States Constitution

confines federal court jurisdiction to actual "cases" and

"controversies." U.S. Const. art. III, S 2. Article III was

designed to ensure that federal courts decide only disputes of "a

Judiciary nature," M. Farrand, 2 Records of the Federal Convention

of
1787, at 430 (1911), thereby prohibiting advisory opinions,

Flast v. Cohen, 392 U.S. 83, 96 (1968). In order to satisfy the

"case or controversy" requirement, the plaintiff must demonstrate

"'a personal stake in the outcome[,]'" City
of
Los
Angeles v.

Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S.

186, 204 (1962)), and the complaint must present a controversy

neither "conjectural [n]or hypothetical," but both "real and

immediate," see id. at 102, without regard to the type of relief

purport of
Campiti v.
Walonis, 453 F.Supp. 819, 822 (D.Mass. 1978),
aff'd, 611 F.2d 387 (1st Cir. 1979)). Perhaps most significantly,
in response to a constitutional challenge the SJC has held that the
MITS serves "the legitimate purpose of improving the security of
the Massachusetts correctional system" by acting as a "deterrent
against improper use" of prison telephones.
Cacicio, 665 N.E.2d at
90.
Thus, it can be concluded, with considerable confidence in our
judgment, that the issue as to whether corrections officials may
intercept MITS calls in the "ordinary course of [prison] business,"
under the protection of S 99(B)(3)(a), is at the very least
reasonably debatable, and, therefore, that Gilday's contention
comes a cropper. See
Kemp, 947 F.2d at 17 (stating that injunction
must leave "no reasonable doubt" what conduct is prohibited); see
also Langton, 71 F.3d at 936 (finding "reasonably debatable" the
issue as to whether MITS monitoring comes within the "ordinary
course of business of a law enforcement officer" as defined by
Federal Wiretap Act).

42

sought,
see
Skelly Oil
v.
Phillips Petroleum Co.
, 339 U.S. 667, 671

(1950).

Among the showings required under the "case or

controversy" requirement is "ripeness," which governs
when a proper

party may bring a justiciable action consistent with Article III.

See Thomas v. Union
Carbide
Agric.
Prods.
Co., 473 U.S. 568, 580

(1985) ("'[R]ipeness is peculiarly a question of timing.'")

(quoting
Regional Rail Reorganization Act Cases
, 419 U.S. 102, 140

(1974)). The basic rationale underlying the ripeness doctrine is

"to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements

over administrative policies and also to protect the agencies from

judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties." Abbott
Laboratories v. Gardner, 387 U.S.

136, 148-49 (1967); Pacific
Gas
&
Elec.
Co. v. State
Energy

Resources
Conservation
and
Dev.
Comm'n, 461 U.S. 190, 200 (1983)

(same). The ripeness determination thus turns on "'the fitness of

the issues for judicial decision' and 'the hardship to the parties

of withholding court consideration.'" Id. at 201 (quoting Abbott

Lab., 387 U.S. at 149);
Lincoln House, Inc.
v.
Dupre, 903 F.2d 845,

847 (1st Cir. 1990) (same). As we have explained, "[p]erhaps the

most important consideration in determining whether a claim is ripe

for adjudication is the extent to which 'the claim involves

uncertain and contingent events that may not occur as anticipated,

or indeed may not occur at all.'" Id. (quoting 13A Wright and

43

Miller, Federal
Practice
and
Procedure S 3532.2, at 141 (1984)).

See also Metzenbaum v. Federal Energy Regulatory Comm'n, 675 F.2d

1282, 1289-90 (D.C. Cir. 1982); A/S
Ludwig
Mowinckles
Rederi v.

Tidewater Construction Corp., 559 F.2d 928, 932 (2d Cir. 1977).

As Gilday has never utilized the MITS regime, there can

have been no call "detailing" of any Gilday "wire communication."

Accordingly, no Gilday wire communication could have been subjected

to "interception" by NET, ATT or the DOC; consequently, there can

have been no "endeavoring to intercept." Moreover, as Gilday gives

no indication that he intends to consent, any DOC "detailing" of a

potential wire communication remains entirely hypothetical. Nor

can it simply be
presumed that the DOC will "detail" unlawfully any

call to which Gilday might be a party in the future, nor even that

he would dial a number which might prompt a call "detail" report.

See Pacific
Gas
&
Elec.
Co., 461 U.S. at 200. Thus, the call

"detailing" claim, in fine, "'involves uncertain and contingent

events that may not occur as anticipated, or indeed may not occur

at all.'" Lincoln House, 903 F.2d at 847 (quoting 13A Wright and

Miller, Federal Practice and Procedure S 3532.2, at 141 (1984)).

For the foregoing reasons, we conclude that the claims

premised on the Massachusetts Wiretap Act are unavailing.

B. Title III

Although the Federal Wiretap Act (Title III, Omnibus

Crime Control and Safe Streets Act, 18 U.S.C. SS 2510 et seq.

("Title III")) generally forbids "interceptions" of wire communica-

tions absent prior judicial authorization, it expressly provides

44

that "[i]t shall not be unlawful . . . for a person acting under

color
of
law to intercept a wire, oral, or electronic communication

where . . .
one
of
the
parties
to
the
communication
has
given
prior

consent
to
such
interception." 18 U.S.C. S 2511(2)(c). (Emphasis

added.) The "consent" exemption under Title III is "'construed

broadly'" as encompassing implied consent. Griggs-Ryan v. Smith,

904 F.2d 112, 116 (1st Cir. 1990) (quoting United States v. Amen,

831 F.2d 373, 378 (2d Cir. 1987)); see also United
States v.

Workman, 80 F.3d 688, 693-94 (2d Cir.) (same),
cert.
denied, 117 S.

Ct. 319 (1996); S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted

in 1968 U.S.C.C.A.N. 2112, 2182 (same).

Under the MITS regime, the following prerecorded message

is heard by both parties immediately after the recipient responds

to an inmate call and before the parties can communicate:

NYNEX [or AT&T for long distance
calls] has a collect call from [name
of inmate], an inmate at the [name
of correctional facility]. To re-
fuse this call, hang up. If you use
three-way calling or call waiting,
you will be disconnected. All call
detail and conversation, excluding
approved attorney calls, will be
recorded. To
accept
this
call,
dial
"1" now.

(Emphasis added.) Thus, upon dialing "1" the party reached at the

number dialed by the inmate consents to the MITS regime prior to

any communication with the inmate.

Although Gilday points out that
he has never consented

either explicitly or implicitly
to the MITS regime, the federal

wiretap statute as well as relevant authoritative decisions

45

indicate that the requisite consent under the Federal Wiretap Act

may be provided by either party. See 18 U.S.C. S 2511(2)(c) (no

impermissible "interception" where "one of the parties to the

communication has given prior consent to such interception"); see

also
United States
v.
McDowell, 918 F.2d 1004, 1006 (1st Cir. 1990)

(finding no Title III bar to telephone interceptions based on

unilateral consent); United States v. Pratt, 913 F.2d 982, 986-87

(1st Cir. 1990) (finding unilateral consent adequate to permit

interception under federal law). Thus, MITS call "detailing" and

recording does not offend Title III.

Moreover, it is settled law in the First Circuit and

elsewhere that "Title III affords safe harbor not only for persons

Call "detailing," moreover, is not within the ambit of the
Federal Wiretap Act, as it simply captures electronic signals
relating to the PIN of the caller, the number called, and the date,
time and length of the call. See 103 C.M.R. S 482.06(1). The
Federal Wiretap Act defines "interception" as an "aural or other
acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical or
other device." 18 U.S.C. S 2510(4) (emphasis added). Subsection
2510(8) in turn defines "contents" as "any information concerning
the substance, purport, or meaning of [the] . . . communication."
Id. S 2510(8).
The United States Supreme Court, in an analogous context, has
held that "pen registers" devices which can record any number
dialed from a particular telephone do not violate the Federal
Wiretap Act "because they do not acquire the contents of communica-
tions as that term is defined by 18 U.S.C. S 2510(8)." United
States v.
New York Tel. Co.
, 434 U.S. 159, 167 (1977). Similarly,
the SJC has held that pen registers "are not governed by Title III,
since there is no 'aural acquisition' of anything." District
Attorney For Norfolk District, 373 N.E.2d at 962. The legislative
history of the 1986 Amendments to the Federal Wiretap Act likewise
indicates that Congress intended to exclude call "detailing"
devices. See S.Rep. No. 99-541, 99th Cong., 2nd Sess., reprinted
in 1986 U.S.C.C.A.N. 3555 (stating that devices which record
electronic data "capture no part" of the contents of "an actual
telephone conversation").

46

who intercept calls with the explicit consent of a conversant but

also for those who do so after receiving implied consent."
Griggs-

Ryan, 904 F.2d at 116; see also Williams v. Poulos, 11 F.3d 271,

281 (1st Cir. 1993) (same). Accord
United States
v.
Van Poyck
, 77

F.3d 285, 292 (9th Cir.), cert. denied, 117 S. Ct. 276 (1996);

United States
v.
Horr, 963 F.2d 1124, 1126 (8th Cir. 1992);
United

States v.
Willoughby, 860 F.2d 15, 19 (2d Cir. 1988) (citing
Amen,

831 F.2d at 378); Watkins v. L.M.
Berry
&
Co., 704 F.2d 577, 581

(11th Cir. 1983). Implied consent may be "inferred from . . .

language or acts which tend to prove . . . that a party knows of,

or assents to, encroachments on the routine expectation that

conversations are private." Griggs-Ryan, 904 F.2d at 116-17

(internal citations and quotations omitted). Thus, "a reviewing

court must inquire into the dimensions of the consent and then

ascertain whether the interception exceeded those boundaries."
Id.

at 119 (emphasis added).

The prerecorded MITS message explicitly advises that

"[a]ll call detail and conversation, excluding approved attorney

calls,
will
be
recorded,"
see
supra p. 45 (emphasis added), thereby

informing the call recipient that the entire "contents" will be

intercepted. Consequently, notwithstanding the absence of explicit

notice of the lesser intrusion represented by possible monitoring

of call content, the recipient is fully informed of the greater

The MITS regime permits random monitoring, as well as
particularized investigative monitoring the latter based on
suspected criminal activity.

47

intrusion;
viz., that the
entire
conversation, as well as all call

"detail," will be intercepted and recorded. See id.; see also

Williams, 11 F.3d at 281-82 (discussing elements of implied

consent). Thus, since the MITS records the entire conversation,

any concurrent aural monitoring by authorized DOC officials in no

sense exceeds the dimensions of the broad implied consent given to

record all call "content," including call "detail." See Griggs-

Ryan, 904 F.2d at 114, 116-19 (finding implied consent to

interceptions, consisting of concurrent aural monitoring and

recording of telephone conversations, after plaintiff had been

informed of the recording only and no restrictions had been placed

on the scope of the interceptions); see also Williams, 11 F.3d at

282 (stating that implied consent obtains where party to conversa-

tion was provided with at least "minimal knowledge" of scope of

interception). Therefore, based on the relevant authoritative

decisions, it is at the very least an open question whether the

express prior consent provided by MITS-call recipients to the

recordation of all call "content" constitutes implied consent to

monitoring.

Finally, as this is a civil contempt proceeding it was

for Gilday to prove that the DOC defendants "violated a clear and

unambiguous order that left no reasonable doubt as to what behavior

Although it has been held outside the prison context
that mere "knowledge of the capability of monitoring alone cannot
be considered implied consent,"
Watkins, 704 F.2d at 581 (emphasis
in original), under the MITS the recipient of the call is informed
that the entire call will be recorded.

48

was to be expected" and that the DOC was "'able to ascertain from

the four corners of the order precisely what acts . . . [were]

forbidden.'" Kemp, 947 F.2d at 17 (quoting Drywall
Tapers, 889

F.2d at 395). Since the Gilday injunction bans only unlawful

practices by the DOC defendants, see supra pp. 20-22 and

authoritative decisions supportably indicate at the very least

that the challenged MITS practices constitute lawful monitoring,

Gilday has not demonstrated a "clear and unambiguous" violation of

Title III. Accordingly, the district court correctly concluded

that Gilday failed to establish a violation of the Gilday

injunction, either by the DOC or by its putative aiders and

abettors, NET and AT&T.

C. The Section 1983 Claims

In a civil rights action under 42 U.S.C. S 1983, the

Various federal decisions have upheld similar prison
monitoring and recording practices under the Federal Wiretap Act.
See, e.g., Horr, 963 F.2d at 1126; United
States v. Sababu, 891
F.2d 1308, 1326-30 (7th Cir. 1989);
Willoughby, 860 F.2d at 19-21;
Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988); Amen, 831
F.2d at 378-80;
United States
v.
Paul, 614 F.2d 115, 117 (6th Cir.
1980); United
States
v.
Green, 842 F.Supp. 68, 71-72 (W.D.N.Y.
1994), aff'd, 80 F.3d 688, cert.
denied, 117 S. Ct. 319 (1996);
United States v. Valencia, 711 F.Supp. 608, 611 (S.D. Fla. 1989);
Lee v. Carlson, 645 F.Supp. 1430, 1438-39 (S.D.N.Y. 1986).
Additionally, the Eleventh Circuit has held that a personal
call may be intercepted by a business under S 2510(5)(a)(i) "to the
extent necessary to guard against unauthorized use of the telephone
or to determine whether a call is personal or not." Watkins, 704
F.2d at 583. Similarly, the Eighth Circuit has suggested that in
circumstances where an employee is believed to be committing a
crime or making excessive personal calls, employer monitoring of
employee phone calls may not be an unlawful "interception" under
the "ordinary use" exception applicable to extension phones in S
2510(5)(a)(i). See Deal v.
Spears, 980 F.2d 1153, 1158 (8th Cir.
1992).

49

plaintiff must prove by a preponderance of the evidence that a

person acting under color of state law deprived him of a right

guaranteed by the United States Constitution or the laws of the

United States. Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.),

cert. denied, 116 S. Ct. 515 (1995); Tatro v. Kervin, 41 F.3d 9,

14 (1st Cir. 1994). Gilday argues that the terms of the Gilday

injunction grant him a "federal right to be free of any intercep-

tion of his wire communications not specifically permitted under

the terms of the Permanent Injunction." From this mistaken premise

he maintains that the DOC defendants violated section 1983 by

implementing the MITS under color of Massachusetts law in violation

of the Gilday injunction, thereby depriving him of a "federal

right." Likewise, he claims that AT&T and NET are state actors,

liable for aiding and abetting the alleged violations by the DOC

defendants. As the Gilday injunction was never violated, however,

these civil rights claims collapse as well.

III

CONCLUSION

Appellant having failed to show as a matter of law that

appellees violated the permanent injunction or caused a deprivation

of any federal or constitutional rights, the judgment of the

district court is affirmed.

On appeal, Gilday has abandoned the claim that defendants
deprived him of "meaningful access to the courts," as well as his
Sixth and Fourteenth Amendment rights. We therefore deem any such
section 1983 claim waived. See
Playboy Enterprises, Inc.
v.
Public
Service Commission of Puerto Rico
, 906 F.2d 25, 40 (1st Cir. 1990).

50