Scribd Logo
Upload

Welcome to Scribd!

  • Byron J. Stevens v. Us Sprint Telephone Company, 936 F.2d 584, 10th Cir. (1991)

    Uploaded by

    Scribd Government Docs
    18 views3 pages
    This document is a court order dismissing an appeal from a pro se plaintiff. The plaintiff had filed a lawsuit claiming that a telephone company violated wiretapping laws by having operators disclose to called parties that a call was from a prison inmate. The district court dismissed the case for failure to state a claim. The appellate court agrees, finding that the operator's disclosure did not constitute an unlawful interception under federal or state wiretapping statutes. The court thus denies the plaintiff's motion to appeal without prepayment of fees and dismisses the appeal.

    Original Description:

    Filed: 1991-06-10 Precedential Status: Non-Precedential Citations: 936 F.2d 584 Docket: 91-3031

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    This document is a court order dismissing an appeal from a pro se plaintiff. The plaintiff had filed a lawsuit claiming that a telephone company violated wiretapping laws by having operators disclose to called parties that a call was from a prison inmate. The district court dismissed the case for failure to state a claim. The appellate court agrees, finding that the operator's disclosure did not constitute an unlawful interception under federal or state wiretapping statutes. The court thus denies the plaintiff's motion to appeal without prepayment of fees and dismisses the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    18 views3 pages

    Byron J. Stevens v. Us Sprint Telephone Company, 936 F.2d 584, 10th Cir. (1991)

    Uploaded by

    Scribd Government Docs
    This document is a court order dismissing an appeal from a pro se plaintiff. The plaintiff had filed a lawsuit claiming that a telephone company violated wiretapping laws by having operators disclose to called parties that a call was from a prison inmate. The district court dismissed the case for failure to state a claim. The appellate court agrees, finding that the operator's disclosure did not constitute an unlawful interception under federal or state wiretapping statutes. The court thus denies the plaintiff's motion to appeal without prepayment of fees and dismisses the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 3

    936 F.

    2d 584

    Unpublished Disposition
    NOTICE: Tenth Circuit Rule 36.3 states that unpublished
    opinions and orders and judgments have no precedential value
    and shall not be cited except for purposes of establishing the
    doctrines of the law of the case, res judicata, or collateral
    estoppel.
    Byron J. STEVENS, Plaintiff-Appellant,
    v.
    US SPRINT TELEPHONE COMPANY, Defendant-Appellee.
    No. 91-3031.

    United States Court of Appeals, Tenth Circuit.


    June 10, 1991.

    Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.


    ORDER AND JUDGMENT*
    JOHN P. MOORE, Circuit Judge.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is
    therefore ordered submitted without oral argument.

    Byron J. Stevens, an inmate in a penal institution in North Carolina, filed a pro


    se complaint in the United States District Court for the District of Kansas
    against U.S. Sprint Telephone Co. Citing as the court's jurisdictional basis "the
    appropriate and applicable United States Code and Rules of Civil Procedures
    [sic]," plaintiff averred when inmates in correctional institutions in North
    Carolina placed collect long-distance calls, the person called was advised by
    the operator that the call was from an inmate or a penal institution.1 Plaintiff
    did not set forth the basis for his action, but he averred, "The laws of the United
    States and North Carolina totally prohibit the use of wiretapping in all manners

    except where such is strictly authorized for a particular instant and manner." In
    response to defendant's motion to dismiss for failure to state a claim, plaintiff
    argued the jurisdictional base of his action is a North Carolina criminal statute
    which prohibits an unauthorized connection with the wire or facility owned by a
    telephone company.
    3

    The district court granted the motion to dismiss, Fed.R.Civ.P. 12(b)(6), and
    subsequently denied plaintiff's motion for leave to appeal in forma pauperis on
    the ground that this action is frivolous. The appeal now pends before us on
    plaintiff's motion for leave to appeal without prepayment of fees, and both sides
    have filed briefs on the merits. We deny the motion and dismiss the appeal.

    The pleadings of a pro se litigant must be construed liberally and held to a less
    stringent standard than those drafted by counsel. Haines v. Kerner, 404 U.S.
    519, 520-21 (1972). Further, a complaint should not be dismissed for failure to
    state a claim unless it appears beyond doubt that the plaintiff can prove no facts
    which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
    Applying those principles, we see no way in which plaintiff could prove the
    claims he asserted.

    Plaintiff's attempt to obtain damages and injunctive relief was abortive. A longdistance operator's inquiry whether a person wants to receive a call from an
    inmate or an institution does not constitute a violation of the federal
    wiretapping law. Such a violation occurs only upon an unlawful interception,
    revelation, or disclosure of the contents of a wire communication. 18 U.S.C.
    Sec. 2511(1). The operator's inquiry is not an interception within the meaning
    of the statute because it is not an "acquisition of the contents of any wire ...
    communication." Under the circumstances of this case, until the call is
    connected, no communication can occur; hence, no interception can take place
    until after the call is accepted. Plaintiff's reliance upon the federal wiretap
    statute is misplaced.

    The same conclusion applies to plaintiff's reliance upon the North Carolina
    criminal statute. That provision contains no private enforcement provisions, nor
    does it constitute a civil remedy.

    Before plaintiff can succeed on his motion for leave to appeal without
    prepayment of fees, he must establish: 1. A financial inability to pay the
    required filing fees, and 2. The existence of a reasoned, non-frivolous argument
    on the law and facts in support of the issues raised on appeal. See 28 U.S.C.
    Sec. 1915(a); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox,

    305 F.2d 58 (10th Cir.1962). We conclude appellant can make no rational


    argument on the law or facts in support of the issues raised on appeal; therefore,
    the motion for leave to proceed on appeal without prepayment of costs or fees
    is denied.
    8

    Moreover, we conclude the lack of rationality in the arguments of the plaintiff


    on the merits of this case mandate its dismissal. Therefore, the appeal is
    DISMISSED.

    The mandate shall issue forthwith.

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
    Cir.R. 36.3

    Defendant admits the practice occurred, but advised the district court that it had
    been discontinued

    You might also like