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PALMA v. POWERS

January 16, 1969

FRED PALMA, RALPH MAMOLELLA, AND FRANK MAMOLELLA, PLAINTIFFS,
v.
RICHARD POWERS, JOSEPH HEALY, PATRICK MCGANN, JOHN TOBIN AND ILLINOIS BELL TELEPHONE COMPANY, A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Will, District Judge.

      OPINION

Plaintiffs bring this action under the Civil Rights Act, 42 U.S.C. § 1983, 1985. They seek recovery of damages allegedly sustained by them as a result of various acts committed by the defendants which plaintiffs contend deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments to the Constitution of the United States. In addition to actual damages, plaintiffs seek punitive damages and such injunctive relief "as may be necessary to prevent the defendants or any one of them from again violating their rights." The jurisdiction of this Court is invoked on the basis of 28 U.S.C. § 1331, 1343.

Plaintiffs Ralph Mamolella and Frank Mamolella are partners in a retail auto parts business in Chicago, Illinois. They operate two stores under the name of "West Side Auto Parts" located at 3001 South Kedzie Avenue and 1132 South Kedzie Avenue. Plaintiff Fred Palma is an employee of this auto parts business. Defendants Richard Powers, Joseph Healy, John Tobin, and Patrick McGann are police officers in the employ of the City of Chicago. Defendant Illinois Bell Telephone Company [hereinafter referred to as "Illinois Bell"] is a corporation organized under the laws of Illinois and is engaged in providing telephone service in Chicago and other areas of Illinois.

Illinois Bell is the only telephone company rendering service in Chicago. West Side Auto Parts has continuously utilized the services of Illinois Bell since 1948 at all locations at which it has been doing business. Immediately prior to January 14, 1966, the business had three telephone lines, one main line and two extensions, serving 3001 South Kedzie and a private line between that location and its other store at 1132 South Kedzie. There were three lines, one main line and two extensions, in addition to the private line, at 1132 South Kedzie. Both main lines were listed in the current alphabetical directory under "West Side Auto Parts" and at various places in the Chicago Classified Directory.

In addition, the complaint alleges that defendants Powers, Healy and Tobin, acting under the direction of defendant McGann, committed the following acts: (1) without lawful authority entered the Mamolellas' store at 3001 South Kedzie, took complete physical possession of the entire premises and conducted an illegal search for a period of two and one-half hours; (2) illegally seized and removed the telephones therein; (3) arrested plaintiffs Palma and Frank Mamolella without probable cause or a warrant; (4) without probable cause charged plaintiffs Palma and Mamolella with having committed a felony; and (5) prepared police reports containing untrue and false statements relating to the arrests of these plaintiffs.

Both Illinois Bell and the individual defendants have moved for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure. In support of their motions, the defendants have tendered the transcript and records of a criminal proceeding brought against plaintiffs Palma and Frank Mamolella in the Circuit Court of Cook County, showing the conviction of Mamolella of the criminal offense of "gambling." This conviction was affirmed by the Appellate Court of Illinois for the First District.

Defendants contend that this conviction conclusively establishes, first, that the telephones in the premises at 3001 South Kedzie were used for an illegal purpose, i.e., gambling, and, second, that the search of plaintiffs' store, the seizure of their telephones and the arrests incidental thereto were valid acts of the police officers. They submit that under the doctrine of res judicata the plaintiffs are precluded from relitigating these issues. In response, the plaintiffs contend, inter alia, that the state court judgment was fraudulently obtained and that, therefore, they are entitled to an independent trial and determination by this Court of the merits of their claims.

Putting aside plaintiffs' objections to the motion for summary judgment for the moment, it should be noted that this Court heard preliminary testimony on the relevant issues in May, 1967, in conjunction with a motion by plaintiffs for a temporary injunction. The operative facts, as disclosed by this testimony and the affidavits, depositions and exhibits on file with the Court are essentially as follows.

On January 14, 1966, Officer Powers appeared before a Magistrate of the Circuit Court of Cook County, Illinois, and requested the issuance of a warrant to search the first floor of the West Side Auto Parts store at 3001 South Kedzie Avenue. At this hearing, Officer Powers subscribed and swore to a "Complaint for Search Warrant" setting forth certain grounds for the search of those premises. Upon examination of the complaint, a warrant was issued by the Magistrate authorizing the search of the premises in question and the seizure "of all implements, instruments, and apparatus kept, used or provided to be used in illegal gambling." At approximately two o'clock that afternoon, Officer Powers, accompanied by officers Healy and Tobin, entered the premises at 3001 South Kedzie. The three officers then conducted a search of the premises and the persons of Fred Palma and Frank Mamolella, both of whom were in the store when the officers arrived.

The testimony at the preliminary hearing as to what actually transpired during this search differs greatly. However, it is clear that before leaving the premises, the officers physically disconnected and removed all telephone instruments at that location. At the conclusion of the search, Palma and Frank Mamolella were taken into custody and transported to the headquarters of the Chicago Police Department at 11th and State Streets, where they were charged with the criminal offense of "Gambling" after which they were released on bond.

Palma and Frank Mamolella were subsequently tried on January 28, 1966, in the Circuit Court of Cook County. The transcript of this proceeding discloses that, initially, these plaintiffs had been charged with a violation of Section 28-1(a)(5) of the Illinois Criminal Code, which proscribes the recording and registering of bets. Ill.Rev.Stat., Ch. 38, § 28-1(a)(5) (1965). A conviction under this section may constitute a felony. See, Ill.Rev.Stat., Ch. 38, § 28-1(c) (1965). However, at the commencement of the trial, the prosecuting attorney sought leave to amend the complaint on its face by reducing the charge to a misdemeanor and charging the defendants with a violation of Section 28-1(a)(2), which proscribes the making of "a wager upon the result of any game, contest, or any political nomination, appointment or election." Ill.Rev.Stat., Ch. 38, § 28-1(a)(2) (1965). Palma's and Mamolella's counsel raised no objection to this amendment. The defendants then waived a jury and entered pleas of not guilty. An evidentiary hearing ensued. At the conclusion of the evidence, the Court found defendant Mamolella guilty as charged and imposed a fifty dollar fine upon him. Defendant Palma was found not guilty and discharged.

Mamolella's conviction was subsequently affirmed by the Illinois Appellate Court for the First District. People v. Mamolella, 85 Ill. App.2d 240, 229 N.E.2d 320 (1st Dist. 1967). Following this decision, Mamolella petitioned the Supreme Court of Illinois for Leave to Appeal from the Appellate Court. This petition was denied on December 19, 1967, and the conviction is therefore final.

The operative facts involving Illinois Bell are also relatively clear. On the afternoon of the search of the plaintiffs' premises, Alfred A. Haven, a Supervising Special Agent in the Security Department of Illinois Bell, received a telephone call from Sergeant McGann, a Vice Control Unit desk sergeant in the Chicago Police Department to whom Gambling Unit officers reported results of raids. Sergeant McGann told Haven that a gambling raid had been conducted at 3001 South Kedzie and that the police had discovered that the telephones on the premises were used to receive racing information and to place and receive bets. He also advised Haven that the police officers had a warrant for the search, that two men had been arrested, and that the officers had confiscated and would remove the telephones at that address. Sergeant McGann then requested that the telephone company discontinue service to the premises at that location.

Following this conversation, Haven arranged for the immediate disconnection of the power for telephone service to the Mamolellas' store at 3001 South Kedzie. He also directed that there be no referral of calls placed to those premises. This action was taken pursuant to the request of Sergeant McGann and also in conjunction with the administration of Regulation 21 of Illinois Bell, filed by it with the Illinois Commerce Commission. This regulation provides,

  USE OF SERVICE FOR UNLAWFUL PURPOSES — The service is
  furnished subject to the condition that it shall not
  be used for the purpose of making or accepting bets,
  furnishing information or for any other purpose in
  connection with any gambling scheme, business, or
  device, or for any similar unlawful purpose. Any
  subscriber whose service is to be discontinued or any
  applicant to whom service is to be denied under this
  regulation will be notified by the Telephone Company
  of his right to a hearing by the Illinois Commerce
  Commission to determine whether or not such service
  is being used or will be used in violation of this
  rule. Upon complaint to the Commission by any
  applicant or subscriber who is affected by the
  refusal or discontinuance of service in accordance
  with this rule, such service shall be provided,
  continued, or restored if the Commission shall
  determine that the service has not been used or is
  not intended to be used in violation of this rule.

This regulation is applicable to all general local exchange service and is inherent in the contract between Illinois Bell and its subscribers.

While Illinois Bell made no independent investigation of the alleged gambling at plaintiffs' store, this is not unusual. At the preliminary hearing, Haven testified that a substantial number of telephones, possibly as many as a thousand, are removed each year for alleged violations of the subscriber's contract by some form or another of illegal use, that although many of these phones are removed on the basis of Illinois Bell's own investigation, approximately two-thirds of the total are removed by police activity, that the conversation he had with Sergeant McGann was typical of conversations which he had had with McGann many times concerning the removal by the police of phones allegedly used for illegal purposes, and that it is the standard practice of the telephone company when requested by the Police Department, on notification that the police are going to remove a phone, to turn off the power supply to that line.

Haven's testimony is corroborated by the deposition of Glenn, the Chief Special Agent in the Security Department of Illinois Bell. Glenn testified that Illinois Bell had promulgated certain departmental instructions governing its own independent investigation and termination of illegally used telephones, but that there was no specific written practice in the security department for step-by-step termination of service in conjunction with police activities. He stated further, however, that it was customary to order the discontinuance or the completion of the discontinuance of telephone service without an independent investigation upon oral request by the police, when the police advised his department that they had removed a particular subscriber's telephone during a raid of his premises. After termination of service, he testified, the police followed up the oral request with a written report of the raid and a letter requesting the company not to reinstall service.

Illinois Bell received written reports of the raid of plaintiffs' store, the criminal charges against Palma and Mamolella, and the subsequent disposition of those charges from the Chicago Police Department on February 19, 1966. An accompanying letter formally requested that telephone service to plaintiffs' premises be cancelled.

In early February, 1966, the Mamolellas and their attorney again contacted various representatives of Illinois Bell about the restoration of service and advised them that West Side Auto Parts was sustaining damages and a loss of business as a result of the lack of telephone service to the store at 3001 South Kedzie. The uncontested affidavits of these representatives disclose that on each occasion plaintiffs were informed that the proper procedure was to file an application for restoration with the Illinois Commerce Commission. Shortly thereafter, prior to the filing of any application with the Commission, plaintiffs instituted this suit. On May 20, 1966, upon the suggestion of this ...


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