Zaffuto v. City of Hammond

Full title: TERRY ZAFFUTO AND SUSAN ZAFFUTO v. CITY OF HAMMOND, ET AL

Court: United States District Court, E.D. Louisiana

Date published: Jul 25, 2001

NO. 00-941 (E.D. La. Jul. 25, 2001)

Opinion

NO. 00-941

July 25, 2001

DUVAL, Judge

Before the Court are plaintiffs' Motion to Alter or Amend Judgment, Defendants' Motion for Judgment as Matter of Law and in the Alternative for Remittitur and Defendants' Motion for Attorneys Fees and Costs. The Court will address these motions seriatim. The Court has considered the pleadings, memorandum and relevant law and finds as follows.

Terry and Susan Zaffuto are plaintiffs in this suit; defendants are the City of Hammond, Roddy Devall, the Chief of Police, and Kenny Corkern, an officer in the police force. Plaintiffs brought claims based on Title VII and 42 U.S.C. § 1983. The Title VII claim was dismissed by the Court on a Motion for Summary Judgment; leaving the § 1983 claim and certain state law claims to be tried by the jury. The jury found that defendant Corkern intentionally violated the constitutional rights of plaintiffs; that he was not entitled to qualified immunity under federal law; and also that he was liable under state law. The jury awarded $1.00 in damages to each of the plaintiffs and awarded punitive damages against Corkern in the amount of $10,000. The jury found that the City of Hammond was not liable under federal law.

I.. Motion to Alter and Amend Judgment

In this motion, the Zaffutos seek to amend the judgment so as to cast the City of Hammond solidarily liable with Kenny Corkern in the amount of $2.00. The Zaffutos point out that the city is liable under state law for the acts of Corkern under the doctrine of respondeat superior and that the judgment should be amended to include the City of Hammond. There has been no opposition filed to this amendment and therefore the Court will amend the judgment to include the City of Hammond being cast in judgment in the amount $2.00. Accordingly,

IT IS ORDERED that the Motion to Alter and Amend Judgment is GRANTED and the Judgment be AMENDED to cast the City of Hammond solidarily liable in the amount of $2.00.

II. Motion for Judgment as a Matter of Law

Defendants urge that the Zaffutos had no reasonable expectation of privacy; that defendant Corkern used the police department's taping system in accordance with his understanding of the policies of the City of Hammond; and thus Corkern is entitled to qualified immunity. There is extensive argument by the defendants both in the original memorandum and reply memorandum filed specifically on behalf of Corkern. In fact, the parties have filed more paper with the Court briefing this issue post-trial than pre-trial. However, when distilled the issues are clear. Did the Zaffuto's have a privacy right in not having their personal phone call between husband and wife disseminated to other persons when the phone call had absolutely nothing to do with the police business? Was this a constitutional right clearly established at the time and did Corkern act as a reasonable officer under the circumstances?

Before briefly discussing the legal issues, the Court points out that credibility of Corkern's and Officer Hauck's testimony as to the circumstances of the retrieval and dissemination of the recording of the telephone conversation at issue in this jury trial. Apparently the jury chose not to believe their testimony. Moreover, the Court takes special note that Officer Hauck appeared to be particularly mendacious.

Lt. Miller, Terry Zaffuto and Detective Peavy did not have an understanding that the phone lines outside of the communication room were recorded. Based on all the evidence the jury did not believe that the Zaffutos could have reasonably anticipated that their private conversations would be recorded. Moreover, although the phone conversations may not have been illegally recorded, there was certainly a factual basis to show that the recorded conversations were illegally disseminated in violation of the privacy rights of the Zaffutos. Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. 1981); Plante v. Gonazlez, 575 F.2d 1119, 1132 (5^th Cir. 1978); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2^nd 64 (1977).

Defendants argue that there was no illegal seizure; therefore, there was no violation of the 4^th Amendment. Defendants state that the jury made a positive finding of no illegal seizure. While the court disagrees that the jury made such a finding, assuming there was no illegal seizure, there was a violation of the privacy rights inherent under the 14^th Amendment. See Whalen.

The jury was instructed that plaintiffs claimed that their constitutional rights were violated under the 4^th and 14^th Amendment. The contours of right to privacy under the 14^th Amendment were sufficiently established at the time of the violation so as to preclude qualified immunity. Corkern should have known it was a violation of the plaintiffs' privacy rights to disseminate the contents of a purely personal phone call between a husband and wife containing information which was clearly intended to be confidential There was absolutely no governmental interest in disseminating this information. The defendants argue that Fadjio is no longer viable; however, the Court finds this argument unpersuasive. See American Civil Liberties Union of Mississippi. Inc. v. State of Mississippi, 911 F.2d 1066 (5^th Cir. 1990).

Lt. Miller and Detective Peavy testified that there was no legitimate reason or purpose having the tape played for them. Also, Corkern could not give any reason for disseminating the tape. Corkern heard the tape once and played to Lt. Miller and played it a third time when Detective Peavy heard it. On each occasion there was no legitimate business or police reason. In Fadjo, the Court held that the constitutional prohibition against dissemination of private information by a public body with no legitimate governmental interest is well established. These rights were established at the time Corkern made and disseminated the recording. Therefore, he should not be entitled to qualified immunity.

It should be noted also that there was contradiction in the testimony as Lt. Miller testified that Hauck told him that Corkern asked him to pull the Zaffuto conversation specifically. However, Hauck denied this. And as stated the Court did not find Hauck to be a credible witness.

Therefore, as a matter of law the Court finds that the Zaffutos had a reasonable expectation that their private husband and wife conversations were not to be recorded and more importantly not to be disseminated. The Court further finds that this right was clearly established at the time of the dissemination and that the dissemination was intentional and not reasonable or objective. Accordingly,

IT IS ORDERED that the Motion for Judgment as a Matter of Law is DENIED.

III. Motion for Attorney's Fees and Costs

Defendants urge they were the prevailing the party in the Title VII claim and are entitled to recovery of attorney's fees and costs pursuant to 42 U.S.C. § 2000e-5 (k). Additionally, the city and Chief Devall urge that they were the prevailing parties in this litigation in the context of claims brought under 42 U.S.C. § 1983 and are entitled to recovery of reasonable attorney's fees under 42 U.S.C. § 1988. The defendants have acknowledged attorney's fees are seldom awarded to prevailing defendants in Title VII cases. The Court finds that the Title VII claim of plaintiff Terry Zaffuto was not frivolous. The dismissal was based upon a Fifth Circuit case which the Court interpreted as holding that the 240 hour disciplinary suspension sustained by Zaffuto was not an adverse job action. The case law is different in other circuits and certainly an argument to the contrary is not frivolous. Moreover, plaintiff points out that Devall and Corkern were mentioned only to establish that they were agents of the City of Hammond in order to bind the city in Title VII liability and that there was no allegation of individual liability against either of them. Although some of the factual bases of the Title VII claim were not sound, the claim in toto was not frivolous, and the recovery of attorney's fees and costs is not warranted. Therefore, the motion for defendants' attorney's fees and costs as to the Title VII claim is DENIED.

The Court may award attorney's fees to a prevailing civil rights defendant only upon the finding that the plaintiff's action was frivolous, unreasonable or without foundation Dean v. Riser, 240 F.3d 505 (5^th Cir. 2001). In Dean, the plaintiff voluntarily dismissed his 1983 claim and the defendant sought to be declared the prevailing party to recover and award of attorney's fees under 42 U.S.C. § 1988. In the course of its opinion, the Court stated:

"Upon the defendant's motion, the Court must determine that the plaintiff's case was voluntarily dismissed to avoid judgment on the merits. Once this affirmative determination has been made, the defendant must then establish that the plaintiff's suit was frivolous, groundless, or without merit. Ordinarily, these inquiries can be resolved from the record developed in the case before the Court, supplemented by affidavits and, only if necessary, testimonial evidence. Additional relevant evidence includes but is not limited to information concerning discovery delays and abuses, slothful prosecution, negative rulings, and sanctions against the plaintiffs. Upon reaching the two conclusions, the district court may then in its discretion award the defendant attorney's fees under § 1988.

This approach provides an efficient mechanism to address the dilemma of encouraging civil rights plaintiffs to dismiss voluntarily non-viable claims while protecting civil rights defendants from the burdens of frivolous litigation. By limiting the inquiry and analysis to the evidence in the record from the proceedings over which the district court adjudicated, opening the Pandora's box of anathematic hearings to determine these issues is avoided."

Id. at 511. Although the basis of the claims against the City of Hammond and Chief Devall under § 1983 are tenuous at best, the Court does not find that plaintiff was in bad faith or that he unduly prolonged the action. However, plaintiffs did prevail in their core § 1983 case for invasion of privacy. Also, plaintiffs argue and the Court agrees that the attorney's fees necessary to defend the action by Corkern were virtually identical to the attorney's fees necessary to defend the case against the City of Hammond and Chief Devall. It would therefore not be just to allow the defendants to recover attorney's fees it would have otherwise expended in defending plaintiffs' meritorious claims. Accordingly, for reasons stated above,

IT IS ORDERED that the Motion for Attorney's Fees by the defendants is DENIED.