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THOMAS v. PEARL

July 1, 1992

DEON L. THOMAS, PLAINTIFF,
v.
BRUCE PEARL, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS ASSISTANT BASKETBALL COACH OF THE UNIVERSITY OF IOWA, DEFENDANT.



The opinion of the court was delivered by: Harold Albert Baker, District Judge.

ORDER

The plaintiff, Deon Thomas, is a student at the University of Illinois and a member of the University of Illinois men's basketball team. The defendant, Bruce Pearl, is an assistant basketball coach at the University of Iowa who tried to recruit Thomas to attend that school. In connection with the recruitment process, Pearl spoke with Thomas on the telephone and recorded their conversation. Thomas did not know that Pearl was recording their telephone conversation nor did he consent to the recording. Pearl disclosed the tapes of his conversation with Thomas to the National Collegiate Athletic Association ("NCAA") and, according to Thomas, he also disclosed them to officials at the University of Illinois. On the basis of the tape recorded conversation between Thomas and Pearl, the NCAA conducted an investigation of recruiting violations on the part of the University of Illinois. Thomas sued Pearl in state court for damages in Count I under the Illinois Eavesdropping Statute, Ill.Rev. Stat. ch. 38 para. 14-1 et seq., and in Count II under the federal wiretapping statute found in the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Pearl removed the case to this court pursuant to 28 U.S.C. § 1441. This court has jurisdiction of the case under 28 U.S.C. § 1331. Pearl has moved for summary judgment. For the reasons discussed in this order, the court grants Pearl's motion on both counts.

Discussion

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985). "[I]n determining whether factual issues exist, a reviewing court must view all the evidence in the light most favorable to the non-moving party." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no `genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988).

I. The Federal Wiretapping Statute

Thomas claims that when Pearl recorded a telephone conversation he had with Thomas and disclosed the contents of that conversation, he violated the following provision of the United States Code:

  (1) Except as otherwise specifically provided in
  this chapter any person who —
  (a) intentionally intercepts, endeavors to
    intercept, or procures any other person to
    intercept or endeavor to intercept, any wire,
    oral, or electronic communication; . . .
  (c) intentionally discloses, or endeavors to
    disclose, to any other person the contents of
    any wire, oral or electronic communication,
    knowing or having reason to know that the
    information was obtained through the
    interception of a wire oral, or electronic
    communication in violation of this subsection; .
  shall be punished [by civil or criminal
  liability].

18 U.S.C. § 2511(1)(a), (c). The statute, however, provides exceptions for situations where one of the parties to the intercepted conversation consents to the interception. 18 U.S.C. § 2511(2)(c) provides:

  It shall not be unlawful under this chapter for a
  person acting under color of law to intercept a
  wire, oral, or electronic communication, where
  such person is a party to the communication or one
  of the parties to the communication has given
  prior consent to such interception.

There is no dispute that Pearl was a party to the telephone conversation at issue in this case. Pearl argues that as a basketball coach for the University of Iowa he was "acting under color of law" so that under § 2511(1)(c) he cannot be liable for recording the conversation. Thomas, on the other hand, argues that Pearl was not acting "under color of law" because he was not authorized by the State of Iowa to engage in wiretapping.

Congress has not been so kind as to define the term "under color of law," so its meaning must be gleaned from other sources. The court first observes that for the purposes of civil rights statutes such as 42 U.S.C. § 1983 and 18 U.S.C. § 242, acting "under color of law" is equivalent to "state action." Lugar v. Edmonson Oil, 457 U.S. 922, 929, 102 S.Ct. 2744, 2749-50, 73 L.Ed.2d 482 (1982); NCAA v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 457 n. 4, 102 L.Ed.2d 469 (1988). If this were a civil rights action, therefore, Pearl's actions would undoubtedly have been "under color of law." Pearl was acting on behalf of the University of Iowa which is an agency of the State of Iowa. He would be a state actor even if his actions were unauthorized by state law. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), is distinguishable. That case involved the unique situation of ...


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